REVIEW OF 2021 (2): CIVIL LITIGATION CASE OF THE YEAR: MOTHER AND CHILD DO NOT BECOME HOMELESS AFTER SUCCESSFUL APPEAL
In Williams v Nilsson & Anor [2021] EWHC 3184 (Ch) HHJ Richard Williams (sitting as a High Court judge) allowed an appeal in a case relating to ownership of property. There is plenty about procedure and evidence in this case, however it is the overall justice of the case that leads to it being my case of the year. There is also much to mull over in terms of guidance for litigants in person.
“In pure monetary terms, the amount in issue is relatively modest and any recovery is unlikely significantly to benefit the Bankrupt’s creditors after payment of the costs/expenses of the bankruptcy. However, if the Property is sold the Appellant will lose her home of some 17 years. After payment of the Respondents’ costs from her share of the equity, she will be left with very little and will not be able to afford to buy a new home on her limited salary.”
THE CASE
The appellant was the former wife of a bankrupt, the defendant were the trustees of the bankruptcy. They brought an action claiming possession of the property that the appellant and her child lived in, seeking to realise the bankrupt’s alleged share of the property. The appellant defended the action as a litigant in person.
The action was defended on the basis that during the divorce proceedings there was a hearing where there had been a clear statement there where the bankrupt agreed that he had no interest in the property after he had left. The appellant argued that there was a common interest trust, or a proprietary estoppel.
THE INITIAL HEARING BEFORE THE DISTRICT JUDGE
The District Judge rejected the Appellant’s argument. The transcript of the hearing before the family court was not available, the District Judge found that there was insufficient evidence of common intention.
“24. Firstly, there is no objective or contemporaneous eviden[ce] that would tend to show that there was ever an agreement between the [Appellant and the Bankrupt] that could lead to a common intention constructive trust.
25. Secondly, Mr Williams has clearly stated in his bankruptcy questionnaire, telephone interview and his bankruptcy application form, that he had a 50% share in the Property. He has declined to provide any evidence in support of the contention of a shared intention in these proceedings.
26. Thirdly, Mrs Williams’ own evidence indicates that she remained in the property and paid the mortgage on her understanding that the bankrupt would have no greater interest in the value of the property. This is clearly a unilateral intention and not one that is shared.
27. Fourthly, Mr Williams singularly failed in the exchange of the emails in 2016 to confirm the alleged agreement when pressed to do so. There is then, in the words of Mr Brown, a deafening silence as to any agreement from the contemporaneous documents or from Mr Williams. All that exists is Mrs Williams’ recollection of events over 10 years ago. That, in my view, is not sufficient to meet the burden upon her and to displace the presumption that the [Appellant and the bankrupt] held the Property in equal shares.
28. Whilst Mrs Williams argues that there was no reason for her to continue to pay the mortgage and meet the costs after Mr Williams had left if he intended to assert a right to part of the property at a later date, that I am afraid, only speaks to Mrs Williams’ intention and not those of Mr Williams. It is entirely unilateral.”
NEW EVIDENCE ON APPEAL
The appellant sought permission to rely on a transcript of a hearing that took place during the divorce. That transcript supported her argument, it had not been placed before the District Judge.
THE HISTORY RELATING TO THE TRANSCRIPT
On appeal the judge considered why the transcript had not been available.
“…I feel that the bankruptcy was not thoroughly investigated and our intention of the split of beneficial interest has been ignored at every turn.
Mr Williams’ bankruptcy application also contained a lot of untrue and misleading information….
As the financial remedy was happening at the same time, the judge was unable to award any property transfer due to the fact the bankruptcy was in place. His Barrister did however acknowledge to the judge that Mr Williams did remember our agreement.”
-
-
The case management order dated 23 June 2020 provides that the Appellant “has permission to file further evidence no later than 4pm on 11 September 2020.” The fact that a person is unrepresented will generally not amount to a good reason for non-compliance with court orders – Barton v Wright Hassall LLP [2018] UKSC 12 at [18] Lord Sumption JSC. That said, it is all the more important that “When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented.” – Civil Procedure Rule 3.1A(2).
-
“The courts’ duty to LIPs
10. Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.
11. The outcome of the case may have a profound effect and long-term consequences upon their life. They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.
12. Subject to the law relating to vexatious litigants, everybody of full age and capacity is entitled to be heard in person by any court or tribunal which is concerned to adjudicate in proceedings in which that person is a party. But in general, those who exercise this personal right find that they are operating in what feels like an alien environment.
• ‘All too often the litigant in person is regarded as a problem for judges and for the court system rather than a person for whom the system of civil justice exists’. (Lord Woolf, Access to Justice, Interim Report June 1995.)
• ‘It is curious that lay litigants have been regarded … as problems, almost as nuisances for the court system. This has meant that the focus has generally been upon the difficulties that litigants in person pose for the courts rather than the other way around’. (Prof. John Baldwin, ‘Monitoring the Rise of the Small Claims Limit’.)
13. In 2013, a judicial working party chaired by Mr Justice Hickinbottom summed up the position as follows:
‘Providing access to justice for litigants in person within the constraints of a system that has been developed on the basis that most litigants will be legally represented poses considerable and unique challenges for the judiciary. Cases will inevitably take more time, during a period of severe pressure on judicial time. However, litigants in person are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants. We consider it vital that, despite the enormous challenge presented, judges are enabled and empowered to adapt the system to the needs of litigants in person, rather than vice versa.’
Difficulties faced by LIPs
14. There is no typical litigant in person, and they will come from a diverse range of social and educational backgrounds. Some may be very skilled at representing themselves. A litigant in person’s knowledge, aptitude and general attitude towards the proceedings are largely unknown quantities at the outset of the hearing. Having said that, the issues identified in this chapter are encountered with some frequency when litigants represent themselves.
15. The difficulties faced by LIPs stem from their lack of knowledge of the law and court or tribunal procedure. The procedure is so familiar to lawyers and judges, that they often do not realise the extent of a LIP’s misunderstanding. For many LIPs, their perception of the court or tribunal environment will be based on what they have seen on the television and in films. They tend to:
• Be unfamiliar with the language and specialist vocabulary of legal proceedings.
• Have little knowledge of the procedures involved, and find it difficult to apply the rules even when they do read them up.
• Be ill-informed about ways of presenting evidence.
• Be unskilled in advocacy, and so unable to undertake cross-examination or test the evidence of an opponent.
• Be unable to understand the relevance of law and regulations to their own problem, or to know how to challenge a decision that they believe is wrong.
• Be unable to understand the concept of a cause of action.
• Lack objectivity and emotional distance from their case.
16. All these factors have an adverse effect on the preparation and presentation of their case.
…………………..
Understanding the importance of documentary evidence
39. Litigants in person may not understand the importance of documentary evidence. Experience shows that they:
• Tend not to make sufficient use of documentary or photographic evidence in their cases.
• Fail to appreciate the need for maps and plans of any location relevant to the case.
• Often do not bring all relevant documents with them to the hearing. The court or tribunal is often faced with the comment: ‘I can produce it – it is at home’, but it is then too late. An adjournment is unlikely to be granted at that stage because of the costs and delays involved.
• Conversely, some LIPs file all their evidence ‘up front’, without realising that preparation happens in stages. It can help to explain there will be opportunity in the case timetable for them to file evidence later, when it becomes clear exactly what is needed.
40. The LIP should have been warned in advance not only to disclose disclosable documents to the other side (having explained what these are), but to ensure that important and relevant documents are included in the trial bundle, and (where necessary, eg because the document’s authenticity is disputed or because the copy in the trial bundle is illegible,) to bring the originals to the hearing. Case management hearings represent an opportunity to give guidance on these matters.”
-
-
In my judgment, it is unfortunate to say the least that, having been identified by the Appellant at an early stage in these proceedings as a relevant document, the court failed at the multiple case management hearings to provide any guidance/assistance as to what steps the Appellant needed to take to ensure that the Transcript was available for the trial.
-
-
-
It is also regrettable that the Appellant, upon learning in December 2020 or January 2021 that she could obtain the Transcript, was then told by court staff that she required the permission of the judge to do so. As the Transcript related to private proceedings in the Family Court, it is likely that the court staff believed that the permission of a judge in the Family Court was required in order for the Transcript to be used in evidence in these proceedings. However, it is perfectly understandable that the Appellant proceeded under the mistaken belief that the permission of the District Judge was required.
-
i) almost 2 years since these proceedings were issued;
ii) the Appellant had flagged to the court from early on in these proceedings and repeatedly thereafter the potential importance of the Transcript to her case; and
iii) multiple case management hearings;
still in her skeleton argument for trial, the Appellant was asking “if the Judge will allow and thinks this is beneficial I would like to get permission to obtain” the Transcript.
“DISTRICT JUDGE: I have seen from your skeleton argument that you have referred to transcripts of hearings that took place earlier. I think you have suggested that I might have access to them. I am afraid I do not. The way it works with the court system is that any transcripts would need to be obtained by the parties, and then presented to the judge on the day. I can only look at documents that are in front of me. That means if the hearing now goes ahead I will not see those earlier transcripts and will not take them into account. In those circumstances, it is open to you to make an application to adjourn today’s hearing. Before you make the application, I should just set out that the matters that I have to take into account when deciding whether or not to adjourn a hearing. Of course, there is the potential injustice to the parties that might result if there is not an adjournment and not all relevant evidence is before me, but in the balance there is also the injustice to the parties that results from delay, and the fact that there is likely to be wasted costs. It would be rare for a court to adjourn on the day of the final hearing following such an application and an adjournment is very much regarded as an option of last resort….I understand that you are a litigant in person. That is something that I can have regard to, but I am afraid it does not carry a great deal of weight in these sort of circumstances, because I have to weigh up the injustice to the other parties as well…..
APPELLANT: No, I don’t [want] to waste time – adjourning today, no. It’s just a shame that I haven’t been able to, sort of, get the transcript for the hearing. That was all I was asking, whether, you know, you would allow me to present that at a later date, I don’t know. But no, I don’t want to adjourn to be honest.
DISTRICT JUDGE: So, today’s hearing, just so you understand, is going to be a final hearing. That means that after today there is not going to be any further opportunity for you to make any further submissions or to re-open the matter, other than by way of an appeal and you need to understand that before you make your decision.
APPELLANT: Okay, Can I just ask you what weight of that would be, if I could get a transcript that would, sort of, obviously prove –
DISTRICT JUDGE: I am afraid that is one of the questions that I cannot answer as a judge in this hearing. That is something that if you had legal representation, you might have been able to get some guidance on. Okay?
APPELLANT: Okay. Could I just ask another question, sorry? Is it possible today for me to ask Mr Williams any questions or not?
DISTRICT JUDGE: No, Mr Williams, has not provided a witness statement. He is here attending simply to observe. He is taking no other part in these proceedings, so I am afraid not.”
i) any such application was unlikely to succeed, but if granted would give rise to a wasted costs order; and
ii) the District Judge was in any event unwilling to give any indication as to the weight that might ultimately be attached to the Transcript, if obtained, whilst making it clear that any contradictions arising from the Transcript could not be put to the Bankrupt in cross examination as he was taking no active part in the proceedings.
-
It was submitted on behalf of the Respondents on this appeal that nothing stopped the Appellant from seeking to compel the Bankrupt to give evidence by seeking to witness summons him in advance of the trial so that he could be questioned under oath. I have to say that such criticism of the Appellant, who was wholly unfamiliar with court procedure, is entirely fanciful.
THE CREDIBILITY AND IMPORTANCE OF THE NEW EVIDENCE
The judge found that the evidence from the transcript in the family court was credible and important.
JUDGE TAYLOR:…….What is your client’s position in that regard? Does he say, “Yes, we did have an agreement but then there’s the bankruptcy?”
MS WILCOCK: He says it was discussed in 2011, however, it was on the basis that any increase in the price of the property from 2011 to when the property was eventually sold, he would still retain his 50 per cent at the point in 2011. But any increase in the value of the property would go to Mrs Williams. And that was discussed.
JUDGE TAYLOR: Well, why was that?
MS WILCOCK: Because he was moving out in 2012 and she was retaining the property. Although it’s clear that she — and it’s accepted that although she’s been paying the mortgage, that was on an interest only basis.
JUDGE TAYLOR: But the increase in value of the property is something that could be taken into account.
MS WILCOCK: It is. It is if the bankruptcy order had have been made. And because the bankruptcy order has been made, it’s for Mrs Williams to be raising with the trustee in the bankruptcy.
JUDGE TAYLOR: Yes and I— I agree. Oh dear, oh dear, oh dear. Have you made this point to the trustee in bankruptcy?
RESPONDENT: Yes, I have. I was in quite — I had quite a few calls with the insolvency practitioner at Leeds initially, but it’s now been passed on to Ipswich.
JUDGE TAYLOR: And what’s been her response?
RESPONDENT: She — she told me that it’s something they could possibly take into account and I needed to send them an email regarding it, which now it’s gone to Ipswich, I have done that and I’ve listed[Diagram or picture not reproduced in HTML version – see original .rtf file to view diagram or picture]/
JUDGE TAYLOR: When did you do that?
RESPONDENT: About a week and a half ago. And I’ve got they wrote back to me. I’ve wrote down the proper wording because I haven’t got a copy of the thing. They wrote back and said, “The valuation amount will be based as the date we complete the equity calculation. Not what property valued at in 2011.” And I then emailed back to say, “Can I just clarify definitely won’t honour our agreement or consider it?” No, they won’t. So, although I’ve told them all the information, what went on, they’re not interested.
……………………..
RESPONDENT: I did say, why, if Mr Williams has acknowledged now the 2011 agreement took place, why did he and his solicitor not acknowledge that fact in May 2016, because I emailed him to remind him of it, and he said to me, “Can we have proof of it? My solicitor wants proof.” And, I said, “Well, it was verbal.” I heard nothing again, and the next thing I know he’s gone bankrupt. So, they obviously knew about it and didn’t address it, and he’s hasn’t told his insolvency – his practitioner, but Ms Wilcox said that Mr Williams said he had told the insolvency practitioner, but I’ve been in quite close contact with Anthea Merrick, who was initially dealing with it – the bankruptcy – and I’ve just managed, luckily to get hold of her, and she’s checked the file for me. There’s no note of it regarding the 2011 agreement. So, you could say – you know, I just wanted to double check that.
MS WILCOX: I’m not sure how much further it takes the court, but my client is clear that he did speak with Andre Merrick about it, and her clear instructions to him were that unless there was any capital contribution – so, by way of the mortgage payments – the insolvency service are not interested.
……………
JUDGE TAYLOR: …….but the trouble is there, is we’ve got this other 2011 agreement hanging over our ears, to which your client apparently agrees was the situation.
MS WILCOX: Sir the position in law in terms of the Matrimonial Causes Act, is that the court, regardless of any sort of agreement, the court cannot order a property adjustment order or can’t adjust the shares in a matrimonial home where there is a bankruptcy order.
JUDGE TAYLOR: That is not, I’m afraid – the position is, that if the insolvency service haven’t taken into account a previous agreement in reaching their conclusion it can be put to them that there is an alternative arrangement…..They can, of course take that into account, but at the moment I’m unsure as to whether they’ve reached a conclusional position in that regard.”
-
-
It is submitted on behalf of the Appellant that what counsel (Ms Wilcox) on behalf of the Bankrupt said at the hearing before Judge Taylor is an acknowledgment on behalf of the Bankrupt that there was indeed an oral agreement in 2011 as the Appellant had claimed, and that the terms of that agreement were as the Appellant had said they were.
-
i) The Transcript does not record sworn evidence given by the Bankrupt, merely submissions made by his counsel, who herself could not give evidence;
ii) The Transcript merely records that the Bankrupt’s counsel acknowledged that “discussions” occurred. There is no acknowledgment of an agreement reached between the parties, and the Appellant’s counsel is wrong to assert the Transcript is clear evidence of an agreement as no such wording is used or intimated. At its highest, the Transcript merely reiterates what was said by the Appellant in her statements, that she said she would pay the mortgage but expected the Bankrupt’s share to not appreciate with an increased value to the property. The District Judge found as fact that this was a unilateral intention, but not an agreement; and
iii) In contrast, the District judge was presented with email exchanges in 2016 wherein the Bankrupt demonstrated no knowledge of any agreement (being two-years prior to the financial remedy proceedings). In addition, the Bankrupt’s statement of affairs signed with a declaration it was true indicated a 50% ownership of the Property. Finally, there are no contemporaneous emails, texts or other documents from 2011 recording any agreement
THE JUDGE’S VIEW OF THE RELEVANCE OF THE TRANSCRIPT
On appeal the judge found that the transcript was of considerable importance.
i) The hearing in the Family Court before Judge Taylor was in the context of financial remedy proceedings where the parties were under an ongoing duty to provide full, frank and clear financial disclosure, since otherwise the court would be unable lawfully to exercise its powers under the Matrimonial Causes Act 1973 to achieve a fair result. In Lykiardopulo v Lykiardopulo [2011] 1 FLR 1427, CA Thorpe LJ stated:
“[36] However ancillary relief proceedings are marked by features absent in other civil proceedings:
i) The proceedings are quasi-inquisitorial. The judge must be satisfied that he has, or at least that he has sought, all the information he needs to discharge the duty imposed on him to find the fairest solution.
ii) The parties owe the court a duty, a duty of full, frank and clear disclosure. The duty is absolute.”
As a result, the Bankrupt was obliged voluntarily to disclose, whether through his counsel or otherwise, any information that was relevant to the outcome of those financial remedy proceedings;
ii) It is evident from the Transcript that it was indeed voluntarily disclosed on behalf of the Bankrupt in the financial remedy proceedings that there were discussions in 2011 that any increase in value of the Property from 2011 would go to the Appellant. When asked specifically by Judge Taylor why that was, Ms Wilcox explained on behalf of the Bankrupt that it was because he was moving out in 2012 and the Appellant would be retaining the Property whilst paying the mortgage albeit on an interest only basis. That explanation is entirely consistent with the Appellant’s evidence in these proceedings that the agreement was made because the Appellant was taking over financial responsibility for the Property to provide a home for her and their child without any contribution from the Bankrupt after he moved out;
iii) Later during the FR Hearing, the Appellant questioned why it was that the Bankrupt was now acknowledging the 2011 agreement when he had declined previously to notify the Insolvency Service of that agreement. It is striking that Ms Wilcox immediately responded on behalf of the Bankrupt to confirm that he had in fact spoken to the Insolvency Service about the agreement, but their “clear instructions” to him were that unless the Appellant had paid capital contributions towards the mortgage they were not interested in that agreement. The Bankrupt was therefore not challenging the existence of the agreement but rather its legal effect; and
iv) Finally, it is clear from the Transcript that Judge Taylor felt powerless to act in circumstances where the Insolvency Service was not in attendance/represented at the FR Hearing and he was faced with the 2011 agreement, which, in the view of Judge Taylor, the Bankrupt “apparently agrees was the situation.” Again, it is striking that Ms Wilcox, on behalf of the Bankrupt, did not then seek to dissuade Judge Taylor of that view, but rather responded by submitting that the court had no power to make a property adjustment order reflecting such an agreement where there was a bankruptcy order in place.
Other relevant factors
-
-
In pure monetary terms, the amount in issue is relatively modest and any recovery is unlikely significantly to benefit the Bankrupt’s creditors after payment of the costs/expenses of the bankruptcy. However, if the Property is sold the Appellant will lose her home of some 17 years. After payment of the Respondents’ costs from her share of the equity, she will be left with very little and will not be able to afford to buy a new home on her limited salary.
-
-
Significant time (including court time) and expense have been incurred on the trial. It is in the interests of every litigant and the system as a whole that there should be finality in litigation.
ADMITTING THE NEW EVIDENCE
The judge admitted the new evidence and allowed the appeal.
i) The importance of the case to the Appellant;
ii) The lack of assistance/guidance given to the Appellant as a litigant in person by the court at the multiple case management hearings as to what the Appellant needed to do to ensure that the Transcript was put in evidence and despite the Appellant having flagged at an early stage of the proceedings and repeatedly thereafter the potential importance of the Transcript to her case;
iii) The Appellant having very good reason for not producing the Transcript at trial in circumstances where she as a litigant in person was reasonably led to believe by court staff that she required, and indeed sought as a preliminary issue at trial, the permission of the District Judge to obtain the Transcript;
iv) The Transcript containing credible evidence that would have had an important influence on the central issue of whether or not there was an agreement in 2011 as alleged by the Appellant; and
v) The reception of new evidence on appeal usually leads to a re-trial, which would necessarily result in further delay and expense, and so should usually only be allowed if imperative in the interests of justice. However, for the reasons given below, I consider that this is one of those rare cases where the appeal court can properly reverse a trial judge’s finding of primary fact without the need of a re-trial and having regard to the pressing need for a proportionate solution to these proceedings.
THE DECISION ON APPEAL
Having admitted the evidence the judge then allowed the appeal.
In Transview Properties Limited v City Site Properties Limited Mummery LJ observed that “[17]…an appellate court will, as a general rule, leave alone the trial judge’s assessment of the credibility of the witnesses and his findings of primary fact when they are based on, or significantly influenced, by the oral evidence.”
The Bankrupt did not give evidence at trial having chosen to play no active part in the proceedings. Therefore, the only witness, who was seen and heard by the District Judge, as to the alleged 2011 oral agreement was the Appellant. The District Judge apparently found the Appellant to be a credible witness in that he accepted her evidence that she intended the 2011 agreement as evidenced by her continuing to pay the mortgage/outgoings on the Property after the Bankrupt had moved out. The District Judge’s finding of the Appellant’s intention is not challenged.
However, the District Judge found that the Appellant had failed to establish that her intention was shared by the Bankrupt. That particular finding was not based upon any oral evidence from the Bankrupt but rather upon an evaluation of what the Bankrupt had or had not said in the then available printed evidence being:
i) The Bankrupt’s statement of affairs (“Statement of Affairs“) in support of his bankruptcy application and the record of his subsequent telephone interview (“Interview Record“) with the Insolvency Service; and
ii) In the exchange of emails with the Appellant in 2016.
In these circumstances, I consider that I can properly undertake that evaluation exercise afresh to include consideration of the Transcript that was not available to the District Judge. It cannot be suggested that in doing so the District Judge had any advantage over this appellate court. Indeed, the District Judge was at a distinct disadvantage, since not all the relevant printed evidence was before him. In undertaking that evaluation, I have regard to the following matters:
i) Having received a letter from the Bankrupt’s divorce solicitor in May 2016 regarding the sale of the Property, there was the following email exchanges on 27 May 2016 (“the Emails“) –
APPELLANT: It says on the letter the house is valued approx. £225. When you moved out it was approx. £212 and we agreed as you were not going to be paying any of the mortgage that you would have any proceeds from a sale from the value in 2011. I have saved all the details on my computer.
BANKRUPT: Can you let me have a copy of this for the solicitor
APPELLANT: It was actually worth less than I said – it varies between sites [the Appellant then pasted screenshots of historic estimated valuations from Zoopla/rightmove]
BANKRUPT: Thanks for that, but the solicitor wants the email
APPELLANT: what email
BANKRUPT: The agreement as you said in the email…or was it verbal
APPELLANT: verbal – you wanted to sell the house and said if I kept it you would not pay any of the mortgage, I said ok but obviously as I am paying the mortgage on my own any price increase from 2011 you would not benefit from. You agreed to this.
Whilst the Bankrupt does not expressly acknowledge the 2011 agreement in the Emails, neither does he deny that there was any such oral agreement once it was specifically raised by the Appellant.
ii) The Statement of Affairs is electronically signed by the Bankrupt with confirmation that the information provided therein is “accurate to the best of my knowledge”. The Statement of Affairs states that the Property is jointly owned and the Bankrupt’s percentage share is 50%. The Appellant does not dispute that the Bankrupt has a 50% beneficial interest in the Property, although she claims that it was agreed that the value of that interest crystallised in 2011. The Transcript confirms that during the FR Hearing it was volunteered and acknowledged on behalf of the Bankrupt that on separation he and the Appellant discussed him retaining his 50% beneficial interest in the Property, but with any increase in the equity from 2011 until the Property was sold going to the Appellant because he was moving out and she would be solely responsible thereafter for paying the mortgage;
iii) If made, the alleged 2011 agreement was entirely sensible, reasonable and understandable in order to preserve a home for their child whilst a minor and recognising the unmatched financial contribution that would be made by the Appellant towards the welfare of the family post separation. As stated in the Telephone Record, “At the moment my wife is living in the house….The mortgage has been paid by my wife since I left, I have not contributed…….I am currently in the process of getting divorced……..I separated from my wife in 2011…… I did not go bankrupt initially, as I did not want to unsettle our daughter from her home, however, she is now going to university, so will not live at home, so I have decided to apply now.” In her position statement dated 8 October 2019, the Appellant stated that “In January 2012 [the Bankrupt] moved in with his partner, who he currently lives with. As I wanted to stay in the property with my daughter, who was 13 at the time, and not to have to disrupt her or her schooling, during an already difficult time, I said I would try and stay in the property and pay the mortgage”;
iv) Whilst the Bankrupt does not expressly acknowledge the 2011 agreement in the Statement of Affairs or Telephone Record, the Transcript confirms that the Bankrupt chose to speak to the Insolvency Service about the 2011 agreement, but was told that they were not interested in the agreement, since the Appellant had not made any capital mortgage repayments in reliance upon it. If there was no such agreement then why did the Bankrupt ever consider it necessary to raise it with the Insolvency Service and obtain their “clear instructions” upon its importance; and
v) The Transcript confirms that Judge Taylor expressed his frustration at being faced at the final hearing with the 2011 agreement, which the Bankrupt “apparently agrees was the situation”. If, however, there was no agreement then again why did neither the Bankrupt nor his counsel say so and in direct response to Judge Taylor.
On balance, I find that in 2011 there was an agreement made between the Appellant and the Bankrupt that any appreciation in the value of the Property after he moved out and before the Property was sold would belong to the Appellant. In making that finding, I attach significant weight to the Transcript. It is important to note that, unlike in these proceedings, the Bankrupt actively engaged with and participated in the Family Court proceedings and in which he was under an absolute duty to provide full, frank and clear financial disclosure. The Transcript fully corroborates the Appellant’s claim of such an agreement being made with the Bankrupt in 2011. Further, such an agreement is entirely consistent with:
i) The Appellant’s and the Bankrupt’s expressed and shared intention not to “disrupt” or “unsettle” their daughter after they separated and whilst she was still at school; and
ii) The Appellant’s and the Bankrupt’s undisputed dealings with the Property post separation – the Appellant remained living in the Property with their young child and paid the mortgage instalments/outgoings without the Bankrupt making any financial contribution or taking any steps for the Property to be sold whilst their child was still at school.
Conclusion