Hello everybody. Welcome to today's session through data law. My name is Safta Mahmoud today. Then I'm continuing with this uh two part session where we're looking at running financial remedy cases and also dealing with cohabitation disputes. So like I say, this is session two, now you'll be aware that the learning objectives and the course somewhere I covered with you in the previous session. So there's two key elements to this. There's the financial remedy side which I covered a fair bit on last time and today I'll be concentrated on the cohabitation elements. So last time you remember, we looked at some of the developments following on from cases such as Charman, Charman as you know, is the big money case in 2007 whereby courts will then be looking at uh dividing cattle assets in such a way that uh the starting point is 50 50 as you know, unless there is good reason to depart from that. And we looked at some of the reasons last time as two reasons for departing from equality such as premarital assets when it comes to gifts, inheritances conduct. For example, I went through some of that with you. I went through no agreements as well which could then justify if the prenuptial agreement or policy not accepted a departure from equality. I also spent some time looking at periodical payments and maintenance pending suit. Generally with you procedurally, we talked about the law portal. So all financial Remy applications that from the end of February this year now need to be put on the portal. We also looked at the efficiency documents. Now today, then I'm going to be concentrating on the position surrounding sole ownership, joint ownership and other aspects surrounding cohabitation. So we'll be looking at trust of land and a point of Trustees Act of 1996. And we'll see how this ties in then with the area of schedule one of the Children Act and I'll take you yourself through the procedure for pursuing a beneficial interest in property. Ok. So those are going to be the areas for consideration today and I'm looking at the laws of September 2023. So starting then with really this discussion on cohabitation, we need to then think about what the position is where property is in sole ownership or if it's in joint ownership. What's the position with that in terms of the rights that the party is concerned may well then have and like I, I'll then be behind this in with and also use of schedule one of the Children Act in that regard and the procedure so many of, you will be aware that if say you're dealing with a dispute where say wife or husband comes to see you, they own a house jointly. Then one of the things you may wish to advise them about is possible servant of the joint tenancy. This is also going to be of relevance when you're advising cohabits, particularly who may be at risk, say they may be seriously or elderly cohabit, sometimes to serve a joint tenancies is very easy. As you know, you serve a notice or serve up on the other side, ask them to acknowledge and receded and the land registry should be notified of 77 takes place once the notice of seven has been received by the other side. And if you are gonna be then subsequently informed the land registry of the severance, there is the form sev one which should be completed and returned to the um center rather to a land registry. So the type of situation where I'm thinking of is where we're dealing with unmarried couples, couples who are not married, not divorced, not single partners, they've been cohabiting perhaps. And we're looking at then the rights that the non owner may well have. And one of the things I would say right from the outset is in this area, it's very important to try and ascertain the party's respective interests, intentions. So it's important to know what their intention was right from the outset. But also during the relationship. So it's helpful to cater for that by setting that out uh when you're drafting. And this is what the case of Goodman and Gallant of 1996 is particularly useful that emphasizes the fact that if there is an express declaration trust, then the absence of fraud or mistake that will be binding. So that's why sometimes when couples are purchasing properties and uh they're purchasing a property jointly, for example, a discussion will be had with them by the convenor as to whether or not they wish to hold a property as joint tenants or tenants in common. If they wish to hold those tenants in common, then the right of survivorship will not apply. So that in the event of their death, it will go to their share, will go to whoever they left and they will or they test to see provisions. But secondly, they may then wish to hold the beneficial interest in unequal shares. And that's where you can then provide for that. An express declaration of trust in the absence of fraud or mistake can also then be used as, as a conclusive evidence of that is a very useful. Now, what I wanted to then look at is the position then where couples do purchase properties jointly, they may purchase a property as John turns in law and equity and this is where as you know, they own each and every part of the share they can later sever as I just mentioned, they can sever the joint tenancy make into a tenancy in common, particularly if they are separating, for example, and that way they can leave their share then to somebody else in their will or through the intestacy provisions. But what's the position if say they did own a property join as joint owns and law and equity, then they later do sever is the division and therefore now the beneficial interest in terms of it becoming a tenant in common. Is it going to be 50 50 split or can it be varied? Well, this is where the case of Stack and comes in and this ultimately did go all the way to the House of Lords in 2007. And by way of background, uh this was a case whereby he had an unmarried couple. Uh they had been in a relationship for some 24 years, they had four Children together and this is where the lay man brought proces under section 14 of as a trust of land and a of Trustees Act of 1996 in relation to a house which they had bought some 10 years previously. This house had been bought in joint names and registered purchase price was 100 and 90,000, 65,000 of that uh was by way of a mortgage advance. But the other 67,000 was funded for by the lady in terms of her selling her first property. And using the process on that to put into this property, she also had some savings that she had in a building society and she used some of that money to also pay towards part of uh this property. Now, this is where the transfer deed which was done in 1993 contained no express declaration of trust. Ok. So he had no express declaration of trust. All that the case was was that the border is joint tenants. The parties hadn't discussed their respective shares at the time of purchase. It didn't contain the declaration that the Survivor could give a valid receipt and hence on that basis. So it did contain that uh normal declaration that Survivor can give a valid receipt. And therefore on that basis, it was confirmed that it was purchased as joint owns in law and equity. Ok. So like I said, the lady had put a lot more into this property than the man had both at the point at which they purchased his property. And also throughout this 24 year relationship that they'd been in and some years later in 2002, the lady severed uh the tendency by way of serving her notice or seven. So that was sent to the man that sever the joint tenancy made it into a tendency in common in terms of the element. And this is where the question then arose. That could there be a variation of the respective beneficial interest. So basically, if you sever the actual part of the joint tenancy and make into a tenants in common, is it going to be severed 50 50 or could that be varied? And therefore, could the tenants in common therefore be something other than unequal shares? That was really the question. Well, this is where the man argued that there was going to be the presumption of 50 50. So his argument was now that you've severed, it's become a tenancy in common. There's a presumption of 50 50 therefore it remains that. So I get half, you get the other half. And in fact, the trial judge concluded that that was the case. Um The lady on the other hand argued otherwise, she said, no, she said, look, I've put a lot more into this property than you have and I should be getting more than you should. And in fact, throughout the years, I've been putting a lot more money into this property on the basis that I thought and understood that I would be getting more than you on that basis. You should have been getting 50% you should be getting less. I should be getting more. So this matter then went all the way to the Court of appeal and then ultimately to the House of Laws as it was then the predecessor to the Supreme Court. And the, at the court appeal stage, the court said that in the circumstances, it was unfair having regard to the whole course of dealings between the parties that the shares should be equal. It was unfair because she had to put a lot more into this property than uh that that the lady had and the man had other than half of the mortgage advanced investor policies were paid for entirely by the lady through her own funds. And on that basis, the court of appeal decided that the share should therefore share should therefore be split. So the man only got 35% and the lady got 65%. Ok. Now the House of Lords then were then seized with this. So the matter went to appeal and in fact, the House of Lords did confirm the court of appeal position. Uh The fact that the lady had contributed the most significant amount and the unusual degree of separation between their financial position was sufficient evidence. The court said of a contrary intention that the beneficial interests were to be held equally. Uh The fact that there was that disparity of their direct contributions clearly was a significant factor in robot that presumption. Therefore, the presumption of 50 50 was robot and the lady like ends up getting 65% he ends up getting uh uh the uh the other uh 35% Hale. Uh in the case did say in a situation where no declaration of trust was shown on the convention and the starting point would have to be that equity follows a law. So basically 50 50 the onus therefore is on the person seeking to show that it should be different from the legal ownership. So the onus here was on a lady, she does have to show on a balance of probabilities which she did to disrupt that and therefore to satisfy the court, it should be something other than 50 50 and therefore going forward. What the court was stating is that solicitors should be advising their clients to have an express declaration trust at the point of acquisition of the property, particularly if there is going to be an unequal contribution towards the purchase of the property. So as I mentioned earlier, when couples are purchasing properties and they wish to be holding in a way other than 50 50 then really there should be a declaration at that point uh declaring it very clear on the tr one on a transfer form, maybe a separate declaration trust as well. So in the absence of fraud or mistake that would be binding and the court will inquire to see if the parts fully understood the implications of the spy rule particularly whereas in this case, there had been inequality in terms of funding acquisition of the asset in question. So very very important points coming out of this case. There was then a later case, this is the John and Kar decision in 2011. And this really addresses the question as to what happens to jointly held property if one party left the home several years previously. So what happens then? So it's directly relevant to the case of uh, stack and dad and that we've just seen. But also it goes further than that. What if one has left a home several years for several years and then they later come back and really reclaim their share. So this year Jones and it was handed down by the Supreme Court in October 2011. And it was a case where by we background, a couple, unmarried couple, uh they decided to get together. Uh They moved in together. It was an eight year relationship. Uh and the man moved out of the home some years later. So it was a jointly own property at the board as joint tenants, law and equity. They're both contributing towards the property. And then eight years later that they had two Children, the Children stayed with their mother. The man moves out forms in a relationship and he left his partner and the Children in the family home and made very little, very minimal contributions thereafter. So the lady really stayed in the property. She assumed that he won't come back. She therefore continued the mortgage payments and all the bills on the property. And uh looked after Children with very little if any support from the man. Then 12 years later he returns. So the man returns uh to uh the uh property and he's basically demanding half his property share of the property, he's demanding half the house. So he serves a notice of sevens seven, a joint tenancy and he's basically claiming half the uh the property. And this is where the lady lodges an application on where she's seeking a declaration that the entire beneficial interest should in fact be owned by her on the basis of really her detriment over the years and her contributions. Now this is where the matter like say, ultimately went all the way to the Supreme Court. And this is where three of the judges, Lord Lord Justices Walker, Lord Justice Collins later justice, how they decided that the intention of the couple had changed upon separation. So once he left his partner and Children at that stage, the intention of the parties changed, he basically relinquished his majority interest in the property and therefore he's much reduced share crystallized at that stage when he moved out with two of the other judges. Lord Justice and Lord Justice Wilson disagreed. They said it was impossible to infer that the parties intended that their shares be apportioned in such a manner. Instead, you had to look at the particular circumstances given that the man was out of the property for so long ie 12 years, it was fair reasonable necessary to equate that to him really over the years, given up more and more of his interest in the house. And instead that going to his ex partner. And therefore, on that basis, the court decided that he would get nearly 10% of the beneficial net proceeds and the lady would get the remaining 90%. All right. So again, it's a very useful illustration of the variation of the beneficial interest once the property has been severed. Ok. Now, the other type of situation we need to really ask ourselves and think about is where the property is in the sole name of one of the parties. So what do we do in that situation? So if you take an example where the house is in uh say say you got man and lady, they're in a relationship, they want to purchase a property together, they go to the bank or be on a society to try and get a mortgage advance for the property. The credit rating for the man let's say is very good. But for the lady, it's not as good. And therefore with that in mind, the uh the bank is not prepared to release the funds to a lady just to a man. And they say to them very clearly that we will release these funds to you, but it's got to be on the provider that the property is put just in the sole name of the man, not the lady. Now this is where they decide to do that. The lady would have liked to have her name and the title of documents as well. But sadly, that's not gonna be possible. So they decide to purchase this property, but it's put just in the sole name of the man. If they are then together for many years and then they later fall out and the man refuses to give the lady any money from the um contribution that um she had made over those years. Then what rights if any does he have towards this property? That's what really, what rights if any does she have rather towards this property? If any? So that's what we've got to be looking at? Ok. So with that in mind, then has she made a contribution towards the acquisition? So this could be where like I say, in the domestic situation where property was purchased in one person's name, along with the contribution to a purchase price of the other or more from one party. And this is where traditionally in the domestic situation, one would rely upon possibly a resulting trust being presumed the contribution, take the form of payment towards all a part of the purchase price or the deposit. So sometimes those arguments could be run. But more commonly, nowadays, we tend to find that the concept of constructive trust will be run instead in a domestic context. And this is where one would be arguing that distrust has been created from the conduct of the parties on the basis that they intended that they should both have a beneficial interest in the property. So putting it simply, there are two requirements that need to be met. First and foremost, there has to be this common intention between the two of them, that the non owning party would also be entitled to a share. That's the first thing that needs to be met that the non owning party also believed that they would be entitled to a share of the property. And secondly, that person must have acted to his or her detriment. So, in that example, I've just given you with the house he's purchased in the sole name of the man because the lady's credit rating was not as good if he and she believes that she was his common law wife, she believes that uh he was say he's a common or husband if they believe that their, the house was as much hers as his, even though it wasn't in her name. So there had to be some kind of understanding between them, the kind of common intention between them to that effect. And secondly, she must have acted to her detriment. All right. So she must have acted to her detriment. She must have been gone and spent money on that property in some, in some way on the basis of that belief. So that's the kind of second scenario in so far as that's concerned. And if that's the case, then that's where she made them push for a beneficial interest uh with that in mind. Now, this is where he got the case of Oxley and his cock, which is one whereby uh in 2004, uh this was a case that was handed down whereby the couple had purchased this property. Uh It was put just in a man's name. The lady throughout the years had contributed substantially towards this on the basis of this common intention. Again, that she also had uh a share of the property and then she acted to her detriment. So the court carried out a survey of the whole course of dealings just like in that stack. And in case I mentioned earlier, the court would carry out a survey of the course of dealings in terms of what she had, what he had, what their intention was, why they paid those monies. And here are the facts in and his the court was prepared to say that one looked at the contributions the lady made towards the property and also the conduct towards the family in general. Now this later case, which was handed down last year and then subsequently went to appeal in December 2022. This looks at the issue of, is it necessary any longer to establish both common intention and detriment enjoy your own properties? Do you actually need to show both? That's what this question this case is about or can just common intention itself suffice. So this is the case of Hudson and Hathaway. Uh a judgment initially handed down by Mr Justice Kerr in March 2022. And therefore putting it simply the case, really answer the question as to whether detriment to a change in position needs to be shown in joint family home cases. Whereas in this case, there was a common intention between the parties as to division from earlier discussions. Can that earlier common in attention in itself be sufficient to alter the beneficial shares. So if the couple buy a property together later, they decide that actually he's going to get more, she's going to get more and they communicate between themselves through email or otherwise. Is that enough or do you have to go on and show detriment as well on the part of the person who is seeking a larger share? And at the high court level, the justice decided that there is no requirement to show detriment in cases where a family home jointly and where there's no declaration of trust his lordship did say that the court can take into account and can decide on, on just common intentional alone, which can be deduced from their conduct and discussions. So if there was a clear agreement, it would be inappropriate, then to add this additional requirement of detriment where that common intention is, is really demonstrated by that agreement. So that was the position then. So just looking at the facts, this was a case involving Miss Hathaway, Mr Hudson in 1990 they started a relationship. He moved in with Miss Ha, they became a joint owner. They get married, they had Children, they sold the house and bought another house in joint names and then they bought another property in join with no declaration of trusts. Ok. Now, in 2011, a few years after a few years beforehand, they separated and the lady stayed in this joining on property. And Mr uh Hudson moved down a few years later. In 2011, the house was blighted by an oil spill making it very difficult to sell a property or had leaked into the house from a neighboring tank. And this insurance claim really dragged on for years and over the following 12 months or so, the parties had really various email discussions about financial arrangements. Some two years later, they agreed in writing that means I had some would keep his shares and his pension and that Miss Hathaway would no longer make a claim over either of these, but that she would receive the entire equity and contents from the home. So it was agreed that she, she would sell the house uh once the oil spill was a result, so effectively what they agreed was she would keep the house the equity contents entirely. But on the basis that she wouldn't make a claim against Mr Hudson in relation to his shares or in relation to really his pension or indeed any schedule one claim against him. So they agreed on that basis and that seemed quite fair and reasonable. So the judge at first instance said, well, I'm satisfied they reached a deal, they didn't disagree. Ok. The deal through correspondence through emails didn't satisfy the formalities for transferring legal title or declaration of trust, but nonetheless, they did reach an agreement. But then two years later, Mr Hudson became rather impatient with the lack of progress in resolving this oil spill, clean up and the insurance claim and the sale of the property. So he in fact went back and said he wanted of the property and that's where the lady said, well, hang on a minute, we agreed that this would be mine. And now you're bringing a claim against that. So he later brought a claim under part eight of the Super procedures and to, and he sought an order for sale with court division of the proceeds. So you can see he now took a different view on this and this is where Mr said, look, although she agreed that hers should be sold, she said she was in touch a whole of the proceeds on the basis of a constructive trust, funding this common intention between them and the agreement and then her relying upon that to her detriment. So that's what she argued and what was the detriment to reliance. So this common intention that she was entitled the whole proceeds. What reliance, what, what detrimental reliance should she and I do to in relying upon that. Well, firstly, she said, look, I paid all the interest payments on the joint mortgage from January 2015 onwards, I desisted from claiming against the assets of Mr Hudson. So name a required in our relationship and I made no claim against him for, for support for the benefit of the Children and the Children activated none of the schedule one. So those are all the uh various claims that I decided to give up and they thought that was a detriment that I suffered based on this common intention that the two of us really entered into. So that's what she was arguing there. She also said in addition to that she accepts sole responsibility for the oil spill and insurance claim, she pursue that and deal with it and also at her own expense, she sort of maintain and redecorate her property from January 2015 and relying upon really disagreement that they reached, she then had to really conduct her finances and lifestyle and basically pay towards the property entirely. Ok. And therefore keeping the upkeep of the property. So she was arguing those factors as detriment. What did the first instance, judge decide when the judge decided on the facts? There was a constructive trust ie the parties had reached an agreement. There was that common intention that Miss Hathaway would retain entire equity shed upon that she relinquish claims they, that she may have had against Mr Husband's assets that demonstrated a detrimental reliance. But the judge said there was that clear agreement on the terms set out in the emails between them. There was a clear common intention that Miss Hathaway would have the entire profit equity. There was the expectation she would sell the house, but the agreement didn't include an entire limit for sale. So the judge was satisfied on the facts that, uh the, uh, that there was a common intention and in terms of detriment, the judge in fact said that this was a case where that clear express agreement was enough. There wasn't a need to show detriment in any event. So the court found her faith, but that's what led to the appeal because there was a big question mark as to whether in your own properties where you are looking at variation, just like for example, in the case of Stack and Dad in Jones and in those cases where you're looking at variation based on conduct or agreement, uh Do you need detrimental reliance? So that led to the appeal? And in fact, it was appealed and heard and handed down in December 2022 by the court of appeal. So Lee Hudson and Jane Hathaway, Lord justice Lewis and Handy dandy, leading judgment. And I hear the court said that where as in this case, you've got a party who's claiming a subsequent increase in the act will share as a result of policy, uh acquisition change, common intention, they must show detrimental reliance on that changed intention. And the court said the trial judge was right to decide on the facts that the requirement of detrimental reliance was met. So the judge was right on that, that detrimental reliance was met. But does it need to be shown that was really the issue in this case? And the court before they even looked at that said, they couldn't quite understand why. At first instance, there was no reliance upon section 53 sub paragraph, one of the Law Property Act of 1925 because that was met. And that wasn't either argue that trial or on the first appeal, those emails that were exchanged between Miss and Mr Hudson, uh they were sufficient to satisfy section 53 they were cleared, they were not uncertain, they were intended to take legal effect and they were accepted by both of them and that therefore released his beneficial interest that has to, and that could have really disposed the appeal that could have been it. Those were enough to vary the beneficial interest. However, because this case really looked at whether or not in the case of joining on property, you do need to show detrimental reliance as well or whether common intention was suffice. The court said that they would then go further. So they said the main reason why the court gave permission for this appeal was to decide on that point of principle, ie whether a constructive trust can arise simply as a matter of common intention without the need to show any detriment to reliance. And the court here said it was necessary and, and therefore they went against a judge at the high court that said it is necessary in these cases to show detrimental reliance as well. The court said that this would otherwise go very much against all the other principles that had been decided over the years. Uh obviously stack and, and, and are just a, a key significant case on that. And therefore, there was that requirement to show that. And uh here on the facts that versus this judge had nonetheless decided that detriment to reliance had been made out anyway. So therefore, the outcome wasn't changed, but really the legal principle remained as it is. Whereas if you, which is there for that, if you've got jointly owned property and you're relying upon uh variation the beneficial interest and you relying upon the constructive trust principle, then in both common intention and detriment, we both need to be satisfied with that. Let's now look at the other situation where it may well be necessary then to seek a share in the uh the beneficial by way of a beneficial interest in the uh the property. And this is where, what if you can't establish common intention at all is the unstoppable that you rely upon. You can rely upon the fact that the other person should be stopped from existing district legal rights. So that's what you're really looking at. So if you can't establish an interest under the trust that we've just looked at resulting trust, constructive trust, what about using this method of a stop and prepared to stop, which is what they see as can establish a right to remain in the property and possibly an interest in that property as well. So, one of the earlier cases is this case of and this case of 1994 which looked at this and one of the things that this case decided was that if one is going to be raising the argument of proprietor stop, or there's a number of requirements that need to be met in order to successfully run this argument. First and foremost, the person must have made a mistake as to their legal rights. So sometimes this could happen where somebody, for example, moves in with somebody else. They believe that they were a common law wife, common law husband or the other person, the other person almost kind of misleads them into believing that. And then the person goes and spends money on the property based on that mistaken belief. That's the first thing they must have been mistaken as to their legal rights and they must have been mistaken in believing that the house is theirs. Also, in actual fact, it's not. Secondly, they must have expended some money or did some other act on the basis of that mistake. And believe so if they believed, like I said, other property is theirs, then they must have acted upon that by spending money or did some other act which was referable to money, your money's worth the possessor of the legal right must have known of the existence of the legal right, which was inconsistent with the equity and the possessor of the legal right must have known of the mistaken belief of a person that claimed the equity. So the person who's kind of misled the other must have known that the other was being misled. And finally, the possessor of the legal right must have encouraged the expenditure by the person that claimed the equity, either directly or by abstaining from exerting his or her legal rights. Or they must have either encouraged the other person to spend money on the house or they must have abstained from asserting their legal right. So this is traditionally what the requirements were for establishing proprietor stale. Now, the case of propose to stop. And as I've just said, often, not always, but often they will involve cases where there is that level of dishonesty or maybe a deliberate misleading of the other party. And one party must have intended to keep the legal estate to themselves and have the whole beneficial interest and include the other. Ok. So you're looking at these reassurances and assurances that are given and the other person must have been relied upon that. So you need to, when you're dealing with these cases, ask yourself was an assurance given this albeit dishonestly sometimes that if the cohabit or the person did this, they would get some benefit. Ok. Now, there's been a number of cases on these Ople cases over the years. Grant and Edwards, Pas Turner, Gilli, Ha Jennings and rice, lots of these cases. And I'll just take one of these, the Gilli and hold, for example. Now that case was one which involved a farmer and uh it was one where a farmer had had his land, his, his farming business. And there was a young lad who used to come and do some errands for him to give him a bit of money. And he said to the lad when you're 16, if your parents are ok with it, if you want a job, I can give you a job here. So he did, he started working for the farm and after a while he was really getting his hands dirty and doing lots on the farming business. So the farmer allowed him to do more and more and then he allowed him to stay on his land and just kept working. The farmer then promised him and made various reassurances to him say, look one day this is gonna be yours. So there's no point really paying you as much as a worker because you know this is gonna be yours. So he really stopped paying him in that regard. But the boy who now grew up as a man and you know, carried on working was given these reassurances that one day this farming business would be his. And this carried on for about 43 years, this business relationship. And then they had a massive massive fallout and the farmer wanted the, the, the the man to move out of his business. And that's where the claimant successfully brought an action under their stop on the basis that over all these years, he was given these reassurances, he relied upon them, it was conscionable, reasonable for him to rely upon them. And therefore he suffered a loss in that regard. And therefore based on a stop, all the farmer should be stopped from exerting his strict legal rights. And on that basis, this man, the claimant was successful. Uh he got the freehold of the farm house and he also got £100,000 compensation for being excluded from the rest of the farming business. So you can see the thinking behind that. So what kind of other situations has this concept of a stop or been used or what else have we used it? Well, it's also been used in other kind of cases where adult Children have brought it successfully against their parents and particularly in relation to farming businesses in particular. So this case of Davis and Davis, for example, in 2016, where he had a daughter brought a claim successfully against her parents, for example, on the basis of reassurances that she claimed that she had been given uh by her parents. So again, that's another example where this uh has been successfully used Dobson Griffy of 2018 is a very useful case by his other judge, uh Paul Matthews as a judge of the high court. And what this case emphasizes is the fact that the onus is of course on the claimant to show on a balance of probabilities their case. So the claimants claimant's case here is for sharing uh the proceeds of sale of the property to, to a farm again is based on the doctrines of both constructive trust. So the uh the farm was purchasing the sole name of a defendant. Uh He got a, a mortgage loan relationship broke down about five years later. And the claimant's case was that before this property was bought, there was an agreement between them as to their respective rights in relation to the property. And the claimant said that she relied upon this to her detriment by carrying out at least some of the works of renovation and improvement to the property on the basis that she believed that showed the property would also be hers. But in fact, the court refused her application and said there were discussions between them about, but these were more about them moving in together, what sort of property they may live in. And these were very hypothetical and very little significance. It was more kind of aspirations and really looking at their willingness to share their lives together. There wasn't much more than that. There wasn't any really serious discussions and therefore on that basis, the court was not satisfied that there was enough there on a balance of probabilities and therefore the civil standard to show detrimental reliance on that regard of common intention. Harfield is another case. It involved another case where an adult uh brought a claim against uh the uh the parents for a share of the property. So this is the case of Huber Field and Harfield in 2018, the claimant was one of four Children of the defendant and, and the late husband. So her father and the claim related to a farm which was held by the defendants uh acreage was some 220 acres and the total land and buildings, everything added up was about 2.5 million. So obviously a fair bit of money there that a daughter who was a claim that she sought the whole farm or less a share of it as the court saw fit. And she brought a claim initially, uh brought her no proprietor a stop on the basis of reassurances that were given in the detrimental reliance. Uh And on, in the alternative, her claim was under an inheritance provision for Family Independence Act on the basis that she brought a claim against her deceased father's state on the basis that she was a child, adult child of deceased and that she should be entitled to uh a substantial part of the uh the, the uh the assets. Now, first and foremost, and the onus is on her, of course, to prove her case, that the court was satisfied that over the years, there were several representations made by her dad to the claimed under her ladyship uh said that uh these where they couldn't really be understood as simple steps to what the party's current intentions were. But these were there and she did rely upon them based on what was said and the actual work she did and the detriment that she suffered over the years while she does this, the acts of detriment included her doing long hours low pay. She took very few holidays and, and, and a person employed at arm's length would simply not have put in the hours that she did nor worked nor accepted the pay that she was paid. No, except the number of holidays she took. If that was not the case of the reassurances. So you can see those reassurances like you. She would one day have the, the land or all of it or certainly part of it. She wouldn't have done what she did had. She not relied upon those reassurances. It never really occurred to her to leave and go elsewhere. That was largely down to these assurances that were given and therefore she did get a lion's share of this property, she got £1,170,000 in that regard. So you can see adventure is successful here. Now, the other claim that sometimes people may bring is under uh schedule one of the Children Act. So some of you will be familiar that this also of course, ties in with uh advising not just uh cohabiting couples but others as well. But this is particularly relied upon by cohabiting couples and this may run alongside a toto action. So in terms of who may apply in the schedule one claim, as you know, this could be often a claim that is brought by say a parent of the child or a child who is a child that uh there may be the care of the child that may be the parents of the child and may be the step of a child, but they're bringing a claim against the parent of, of the child, which could also be the adoptive parent. And uh this is uh something that like say cohabits will often be relying upon because the orders on the section 25 of MC A would not be available to them. Of course, and there's a range of orders that are available, there could be periodical payments, lump sum, property adjustment orders made available in this regard. And there's been a number of cases on this old years JNC was won some years ago at a lottery when the father for example, was required to pay the child out of his, some of his uh child, out of some of his winnings, the criteria which the court will take into account in deciding what order if I need to make. Are these, the court take into account their income, their earning capacity, property or the financial resources of the applicant but also of the child and any other parent both now and in the future. So they'll take that into account. They'll take into account their financial needs obligations and responsibilities which they have or may have in the foreseeable future. They'll take into account the financial needs of the child, income, earning capacity, property and resources also of the child and also any physical or mental disability, also of the child. And finally, they'll take into account the manner in which the child was educated to be trained or otherwise. Ok. So this could sometimes run alongside a action in that regard. And one of the things to bear in mind, this case of BC and de illustrates is sometimes you might find that your client may well pursue a schedule one claim, but they're also applying for a legal costs order against the other party as well to cover their legal fees. And this case of BC and de illustrates that we're here, the mother lodged an application under schedule one of the Children act, a child was aged eight and she also sought a lump sum to cover her legal costs. Uh which at that stage was 67,000 and a further amount of some £42,000 for prospective legal costs. And the court did say that it's important that we as in this case, a claim is being brought, both parties need to have equality of arms, equal access to justice. And without really this appropriate legal costs being met by the other party, uh she simply could not pursue the application. So the court ordered that the mother was entitled to a sum in respect of her legal costs. And this was used for a person meeting both her past and in fact her future legal bill. So that can be awarded if needs be, if you are going to be pursuing the schedule one claim. Bear in mind this is within, of course, the F pr so therefore, it's part nine of the family procedure rules which covers both ma super partnership cases and also of course, covers schedule one claims and now you'll be pursuing these sort of family law portal at the end of us from the end of February 2023. So schedule one claims they could be through the fast track. It could be through a standard track. It depends on what you're claiming. If you're claiming just periodical payments, that could be for the, for the fast track. If you're claiming maybe property adjustment lump sum or maybe PPS, then that would be through the, the standard track in that regard. So it would depend on what's actually being claimed in that regard. And uh the various forms as you know, the form my form, my one would be the E one, E and E one would be there that was now are not far at court in the way we used to. These are uh the financial applications are now done through the portal, but the various aspects of the form a A one are still taken out there and then they are provided for on the online portal application. So if say you've got the mother, for example, she does put in a schedule one claim where she seeks periodical payments for the benefit of a child, then that's where that might then go to the fast track. OK? So that may well pass the fast track process. And if that is the case, then that will be a hearing which will be heard sooner with you and then determination potentially sooner than the standard track as well. Now staying with the cases, I just want to spend a bit of time. Then just before we finish this session on running through with you, some of the a court procedure for pursuing these actions. So you'll be pursuing this via section 14 of the 1996 Act where the court then has the authorization and to provide uh a resolution in so far as these applications. So they can for example, order say a beneficial interest to be made available. And the court will then take into account the criteria in the section 15 of this act. And uh the court may then declare the respective interest. The court may order sale, for example, that's possible as well as the section 14 of. And the specific criteria that the judge will consider in deciding what order if I need to make are contained within section 15. So they take into account the intention of the creator sort of trust. Why was the property purchased in the first place? What is it now used for? Is it still at home for the child? In which case that will make it harder to sell the property? And what about the interests of any other parties such as other creditors? For example, if the property is one that's uh applied to be sold by the trustee in bankruptcy, for example, bear in mind that because these are civil proceedings like CPR, then you can make uh what's called part 36 offers which I'll cover shortly costs generally follow the event. So you got parts 44 45 of the S CPR. So costs generally do follow the event in these applications. You can even apply for summary judgment under part 24. So you can try and get a resolution sooner rather than going all the way to final hearing. So claim forms will be done for this. You've got strict time limits. Which I'll take you through shortly. The overwriting objective of course applies under CPR part one. And this is where a few years ago the civil procedure Amendment rules of 2013 came in and they provided for the amendment to the Old Friday objective so that there is a need for a court to ensure compliance with the rules, practice directions and orders. So in this area, there's a heavy emphasis on the need for compliance uh with uh with court orders and practice directions and the failure to do that could then amount to cost orders being made. There is a pre action protocol for tata cases. It's contained within the 79th update of the CPRS from April 2015. And this will be particularly relevant where no formal preaction protocol applies. But as you can imagine what this requires is if I was acting safe for the lady and she's seeking a beneficial interest by way of a constructive trust. For example, I would be expecting them to have exchanged sufficient information with the other side to understand each other's position to try and settle it without proceedings. We should have considered ad r to dispute resolution to assist with settlement. We should have really exchanged documents. We should have uh aim to reduce the cost by trying to resolve matters. So very important to take that into account. Whilst the application is being pursued. Of course, it's necessary to try and protect the beneficial interest potentially. So this is where those of you who pursue these, you may wish to try and protect your client's interests. And a way to do that is to try and lodge a unilateral note as a un one or form I only restriction if it's unregistered land, try and lodge the pending land action, the K three, if you can and if you do pursue these claims, make sure you're familiar with part seven or part eight of the CPR part eight is used where there is no substantial dispute as to effect. So if say the house is held jointly and you're simply disputed as to whether the house should be sold or not. Part eight could be used for that. Perhaps. So it could be used in those circumstances where part seven is where there is a substantial dispute as the factor. So if the house isn't saying the sole name of one party and the other is seeking a beneficial interest in that, then that's where you may want to seek part seven with, with part seven, there is a need to have strict adherence to the CPR. So claim forms particularly as a claim defense, see replies in that regard, list of documents. So for compliance with the expectations of the CPR in so far as that is concerned, if you are pursuing it to larger action, make sure you're familiar with the fact that the court will allocate a track depending on which track it is. So there's various tracks that the case could be allocated to. There's three tracks, more claims, fast track and multi track and which track the case is allocated to to an extent is dependent upon the value of the claim. Although it does also depend on how complex the case is. So part a claims sometimes may go to the the the um fast track cases for example and fast track, the court will be setting a timetable so you can see here the fast track, the timetable. Normally the trial will be expected to take place within 30 weeks. You should be disclosing documents and inspecting those if necessary within four weeks of allocation, witness statements should be filed within 10 weeks and the experts reports within weeks by week 14 and the trial should be no later than week 30 multi track is gonna be for some of those cases where they are going to be more complex. Perhaps, uh there's going to be uh greater values, there's going to be maybe more witnesses for example. And that's where the court may call the parties in for case manager conference beforehand for these types of matters. And the one important thing when you're dealing with a lot of cases is because it's based on CPR, I would suggest you think about making use of part 36 offers. These are very good. These could be made even before proceedings, they could be made during proceedings. You must make sure these are in writing and you're effectively giving the other side 21 days within which to come back to confirm as to whether they accept your offer or not. And the beauty of part 36 offers is if these are not accepted, then there could be cost consequences. So if the other side doesn't accept your part, the offer, there could be cost consequences. And that's why it's worth looking at these. And the other key thing when you are dealing with tata cases, in terms of the procedure would suggest is make sure you are familiar with the cost budget requirements. This is a very important thing in LATA cases. This is where as from first of April 2013 as this requirement to ensure that there is a cost budget for that court which really sets out what your costs are and what your likely costs are to be uh for for this case. Uh so that the court can then sign off the cost budget to approve it or otherwise. And this must be filed by the date that's given or if not nominated in seven days before the first case manager conference. So it provides an approximate cost of your reasonable costs and disbursements. And if you fail to file this, uh and you are unable to get relief from sanctions to be given the opportunity to rely upon it. If it's filed later, all you'll be able to claim even if you're successful is just your court fees, not your actual costs. So it's very important to ensure compliance with this. And that's where there's been a number of cases where the whole issue about late filing of cost budgets has been a real issue. This case of Michelin News group newspapers in 2013 was an example of that. We're here. The cost budget was filed late. The lawyers did seek relief from sanctions under the rule of 3.9 which they can claim and the court can give them relief and therefore allow them to rely upon a later filed cost budget. But the reason they give has to be one that the court accepts. And here, the court did not accept the reason that they gave, which was they were inundated with work. They were very busy. The court didn't feel that that was a good enough reason. So the relief was not granted, having said that there have been other cases. There's the d case, the decadent case, the case a few years ago and all of these three cases, the court appeal did allow relief. Uh They thought that really the Mitchell case had been decided appropriately. But here given the circumstances, they were prepared to allow relief to be given on those cases. So there was, there is some relief that's given, but you can see it's not going to be always that easy to do. Ok? So you can see I've covered a fair bit with you on this session as well today, going through the way in a manner in which we run in cohabitation cases. You can see it's very important to be able to give the right advice to your clients. Both when properties are held jointly one, when they in the sole name, one party about resulting trust, constructive, trust about a stop or and then pursuing that. And you can see how to case is also run alongside uh the position with schedule one claims as well. Thank you very much indeed for listening. I hope that's been a useful session for you and I'll speak to you next time. Thanks very much. Bye for now.
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