Case No: B2/2012/1459 
Neutral Citation Number: [2013] EWCA Civ 382
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HER HONOUR JUDGE HAZEL MARSHALL QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 22nd January 2013

Before:

LORD JUSTICE TOULSON
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Between:

	Curran	
Applicant	
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Collins	

Respondent	

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The Applicant appeared in person
The Respondent did not appear and was not represented
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Judgment

Lord Justice Toulson:

1.	This is a renewed application for permission to appeal against a judgment given by HHJ Marshall QC in the Central London County Court on 24 May 2012.  

2.	The appellant claimed an equitable right in a property called The Haven near Ashford, which had been bought in the name of the respondent in 2007, and a joint share in a kennels and cattery business which was carried on at the property.  She claimed that the business was run by the respondent and herself in partnership.

3.	In a very full and clear judgment the judge found that the appellant had no equitable interest in the property and that there was no partnership.

4.	The parties had been in a relationship from the late 1970s when they were in their late teens until they finally split in 2010.  During that time the respondent had the legal title to three successive properties.  The first was a flat in Bedfont, bought in 1984 for £29,995 and sold in 1986.  The second was a house in Bedfont, bought for £45,850 on the sale of the flat.  The respondent lived there for 21 years. That property was sold in 2007 for £191,000.  The Haven was then bought for a total of £750,000, that sum covering both the business and the value of the property as a home with a mortgage of £562,500.

5.	The principal witnesses were the parties themselves, but there were some supporting witnesses on both sides.

6.	The judge identified at paragraph 38 and onwards a number of key issues which had to do with the nature of the relationship, when they became full co-habitants and what contributions in monetary terms the appellant made to any of the properties.  

7.	The judge formed a much more favourable view of the appellant as a person than she did of the respondent.  To make clear what I mean by that, the judge found that the appellant was entirely straightforward and telling the truth as she saw it.  The judge was not sure that in some respects her evidence was accurate, and indeed she rejected it in some parts because she felt that the appellant was coloured in the evidence by how she felt that she had been treated -- one might add, with understandable cause.  The judge therefore had to consider whether her evidence was not only honest but in all respects objectively reliable.

8.	By contrast, the judge found that the respondent was cunning and quite capable of putting forward a story which was untrue if he thought that he could get away with it.  She said that she therefore approached his evidence with "extreme caution".  Nevertheless she accepted his evidence about when they began to live fully under the same roof, which was not until 2002 although they had been "an item" for many years.

9.	Sadly the appellant found herself in the classic position of a woman jilted in her early fifties, having very much made her life with the respondent for over 30 years. The law of property can be harsh on people, usually women, in that situation.  That was the view of the Law Commission when it recommended reform of this area of the law, but its recommendations were rejected by the Government. Bluntly, the law remains potentially unfair to people in the appellant's position, but the judge was constrained to apply the law as it is.

10.	If I look merely at the judge's findings in relation to the property, as distinct from the partnership claim, it is hard to see any basis on which the appellant could have any real prospect of success on an appeal.  The appellant makes a number of criticisms about the judge's approach to the evidence, for example that she did not attach sufficient importance to a statement of the appellant's mother, who by reason of age and infirmity did not give oral evidence but provided a written statement.  There is, I am afraid, no prospect of succeeding on that complaint.  The judge was entitled to treat that statement as of little help, for the reasons that she gave in her judgment.

11.	There are other points where the appellant says that the judge either erred by preferring the respondent's evidence to her evidence or failed to give sufficient weight to this, that or the other part of the evidence.  I fear that none of those complaints would enable her appeal to succeed.  At a number of points the judge had to make her decision on whose evidence she accepted.  The appellant feels, sincerely and profoundly, that the judge got it wrong in a number of respects.  But the judge did hear the evidence.  She was certainly not unsympathetic to the appellant and there really is no basis on which an appellate court would say that the judge was wrong to reach those findings that she did.

12.	There is possibly, and I put that word very cautiously, a glimmer of a better chance in relation to the partnership.  The judge dealt with that very much more shortly.  As to that, she said that there was nothing to support the case that there was a partnership in relation to the business other than the appellant's own assertions, but that does not mean that those assertions were worthless if she was accepted as an honest witness.  The judge has referred to the absence of documentation to support a partnership.  That would be a powerful point if the relationship between them was entirely commercial, but it is a less powerful point when you have a domestic arrangement of this kind. The judge also noted that the respondent himself represented to others that the kennel business was a venture between him and the appellant, but she treated that as merely an example of deceit on the respondent's part and therefore not of assistance to the appellant.  Whether it was right to do that in those circumstances is at least open to question.

13.	Judges ought not to be affected by human sympathies.  They must apply the law as they see it.  It was extremely hard not to be affected by in one sense, that the appellant has in truth been treated unfairly.  She describes herself as “a nobody”, but with a profound sense that what has happened is not just.  She says that she worked really hard at the kennels and got nothing for it, that she trusted the appellant and believed that if they broke up he would play fair towards her.  The result of the judgment is to make her feel utterly worthless.  It would not be right to give permission to appeal simply because of those very human feelings.  As I have already indicated, the law is regarded by many in this area as profoundly unsatisfactory but it has to be applied as it is.

14.	Nevertheless I think that, given the domestic nature in which this business was conducted, the evidence of the claimant about it, whom the judge considered to be fundamentally honest and the respondent's own representations that it was a joint business, I think that she has got just sufficient prospects of an appeal that I am going to give her permission to appeal. I described her prospects as a “glimmer”.  I use that word so as not to give the appellant unduly false hopes, but the question for me is whether there is sufficient prospect of an appeal that it merits a second look by this court and, despite my hesitations, I have come to the conclusion that there is.  

15.	I will therefore give her permission to appeal.  I will not restrict the grounds of appeal to the business. I would not give permission to appeal against the findings in relation to the property if that stood alone, but since I have come to the conclusion that it would be just to give permission to appeal in relation to the business, and since it is not going to materially add, as far as I can see, to the costs of the appeal or indeed the work of the court in dealing with it as the court will have to read the whole judgment in any event, I will allow her to appeal against both parts of the judgment. I have indicated that my reason for doing so is that I can see a possible ground of criticism of the judgment in relation to the partnership and I will let her argue her points in relation to the other aspect of the case at the same time.

16.	I will say a court of three, which may include one High Court judge, and allow one day.

Order: Application granted