Neutral Citation Number:  EWCA Civ 1347
Case No: B3/2013/3787
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  2 FLR 1240]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
His Honour Judge Pearce-Higgins QC 3WR00032
Royal Courts of Justice
LORD JUSTICE TOMLINSON
LORD JUSTICE McFARLANE
LADY JUSTICE MACUR
- - - - - - - - - - - - - - - - - - - - -
David Roy Southwell
- and -
Catherine Marie Blackburn
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Ashley Wynne (instructed by Harrison Clark Rickerbys Limited) for the Appellant
Cheryl Jones (instructed by Quality Solicitors Parkinson Wright) for the Respondent
Hearing date : 29 July 2014
- - - - - - - - - - - - - - - - - - - - -
Lord Justice Tomlinson
The Appellant, David Southwell, appeals against an Order made on 13 December 2013 by HH Judge Pearce-Higgins QC in the Worcester County Court. By that Order the judge ordered him to pay £28,500 to the Respondent, Catherine Blackburn. The Appellant and the Respondent had, in the words of the judge, set up home together in 2002 in a house in Droitwich. The house was purchased in the Appellant’s sole name with his money and with the benefit of a repayment mortgage, the liabilities in respect of which were discharged by him alone. On the breakdown of the relationship in June 2012 the Respondent claimed that the Appellant held the property for the benefit of both of them in equal shares. That claim by the Respondent to be a beneficiary of a constructive trust failed, but the judge upheld her alternative claim to an enforceable equity by operation of proprietary estoppel. The judge valued that equity at £28,500 and ordered payment of that amount by the Appellant in satisfaction thereof.
The Appellant appeals against that determination. He contends that the assurances found proved by the judge in relation to the Respondents’ security of tenure lacked the requisite specificity to engage the doctrine of proprietary estoppel. He contends also that the judge erred in finding that the Respondent suffered detriment in reliance on those assurances, asserting that such detriment as may have been initially incurred by the Respondent in giving up a secure tenancy and moving in with the Appellant was dissipated over the course of the relationship, which lasted for about nine years. Finally, the Appellant contends that the judge was wrong to find that the Appellant acted unconscionably in denying to the Respondent the right or benefit that she expected to receive. Mr Ashley Wynne, who developed these submissions both in the shape of a clear and succinct skeleton argument and in oral submissions before us, rightly recognised that the elements of proprietary estoppel are not to be regarded as self-standing or in watertight compartments and that there is an element of overlap in their consideration. Running through the evaluation of all of the elements is the requirement of unconscionability, such that the identification of promise or assurance, reliance and detriment might not of itself be sufficient to give rise to the equity.
Before the judge there was little or no dispute about the legal principles which the judge had to apply but considerable dispute about the facts. The judge found both parties untruthful in their evidence, which was “at least . . . tainted and distorted by what they would have liked to have happened rather than what did.” However the judge made clear findings. It is the contention of Mr Wynne that those findings did not support the judge’s conclusion that a proprietary estoppel was made out and that, so far as concerned detriment, the judge had failed properly to carry out the evaluative exercise required in consequence of which he had reached an untenable valuation of the detriment suffered by the Respondent.
The judge’s essential findings of fact are contained in the following paragraphs of his judgment, which I see little point in attempting to paraphrase:-
“8. Firstly as [sic] the circumstances and manner in which the property was bought. The parties met in early 2000. At that stage the Claimant was aged 40 years. She married in 1987 and was recently divorced with two young daughters, then aged 11 and 12. She had limited resources having left the marriage with about £25,000, but had secured for herself a rented house in Manchester, from a housing association, on which she had spent between £15,000 and £20,000 fitting out and furnishing. She had a full time job as a teaching assistance. She received no help from her ex-husband. It would appear they lived on a tight budget. She and her ex-husband had owned a property so she was not unfamiliar with the process of buying a house and raising a mortgage. She looked on her house as long term secure accommodation for herself and her two children. In her situation she was potentially vulnerable.
9. The Defendant was then aged 41 and unmarried. His CV (prepared I think in 2007) at 4/133 sets out his experience. In 2000 he was a claims manager working and living in the Portsmouth area. He said that he had no thought of getting married having seen friends’ marriages breaking up.
10. The parties’ relationship proceeded slowly. It was not until 2002 that they set up home together. 6 Charlotte Bronte Drive Droitwich was purchased in the Defendant’s sole name. Agreement to buy was reached in June 2002. It was financed by the Defendant as to in round terms) £100,000 mortgage and £140,000 equity from his previous house. There was dispute as to how Droitwich was decided on. In my judgment it was a joint decision. It suited her because she had a brother close by and it suited him for his new job. I reject his evidence that effectively he made the decision on his own and she accepted it. It is clear to me from the evidence of the Claimant, which I accept, and Ms Savigar and Katie Blackburn (whose evidence I also accept) that the Claimant was involved in looking for houses and making the decision to buy this one. Her approval before purchase was import – see the note at page 4/96. His letter at 4/26 dated 10/5/02 makes reference to going house hunting.
11. The Claimant’s evidence is that it was always intended that they would purchase the house together and she would be an equal owner with the Defendant. The only reason she says that the documents do not reflect that is because she being in Manchester it was inconvenient for her to sign the necessary documents. He signed them on the understanding that the necessary transfer to them jointly would follow soon thereafter. The Defendant denied that. He says it was always intended to be in his sole name and he made no promises to her at all about joint ownership. He was unable to say what discussion there was before moving. From his evidence it would appeal that it was almost by accident they both arrived to take up residence at the property together.
12. There was a considerable disparity in their income and assets. The Defendant did not envisage marriage because in my judgment he was aware that as a wife the Claimant might have a substantial claim against him in the event of breakdown. He was prepared to provide a home to the Claimant and her two daughters, but it was to be on his terms. In his evidence to me he came across as a man of few words, by nature shrewd, cautious and guarded. No doubt these were valuable characteristics in his work, which he also carried over into his private life. The Claimant makes certain comments about his character particularly in paragraph 16 of her statement which she told me she wished to withdraw because they were not really relevant. I agree. I did [ ] however from my own impression that the Defendant was quite detached in his approached.
13. Looking at the evidence as a whole I conclude that it is most unlikely that the Defendant would have or did ma[k]e any clear promise to the Claimant that she would become an equal owner in the house with him or that he promised her that she would at some future date. It would have been against his interest to do so. And in my judgment he was fully aware of that which is why he made no such promise or agreement.
14. Both the parties may have been “in love” as they claim, believing that their relationship would have no end, but I do not believe that either of them was blind to the realities. I do accept that for both of them (the Claimant in particular) moving and setting up home together was a major step and they discussed it together. I am satisfied that the decision to purchase this house was made jointly with the intention that it would become their home where they would live together effectively as man and wife. The claimant knew that she played no part in the purchase, financially or on the documents. He made sure that she was kept away from any paperwork that might suggest she had an interest. With the benefit of hindsight I conclude that the Claimant now realises she was too trusting and foolish and she likes to think she would have been more cautious and more aware of the need for proper documents and clear promises and firm agreements.
15. At the same time I am quite sure that there was discussion about her move and the consequences for her. He did reassure her that she would always have a home and be secure in this one. In evidence he accepted that he agreed to provide her a home, but he says only for so long as the relationship lasted. At the same time he never thought that the relationship would not last. He told that that he thought he was providing her with a home for life, but now the relationship has ended he has no legal obligation to her at all. In cross examination he had to resile from his assertion in the last sentence of paragraph 3 of his pleading. My judgment is that he thought he was taking on a long term commitment to provide her with a secure home, and said so to her. He made such reassuring promises as were necessary to persuade her to move (and thereby give up her own independence and security), in the knowledge and intention that she would rely on them.
16. She was taking a big risk, moving from a secure rented house on which she had spent a lot of money, leaving her job and moving her children; and without trust in the Defendant and reassurances from him would not have moved as she did. The documents that she saw at the time (4/95 and 96, dated October 2001) which provided for her to receive a lump sum and pension in the event of the Defendant’s death, suggest a real commitment from the Defendant and were intended to, and did, encourage and reassure the Claimant. I accept as she says that he talked of engagement, but he never took it further and for reasons I set out above I do not think he intended to pursue this. There were of course potential advantages for her if the relationship lasted) with the financial and other support the Defendant could give to her and her daughters. There were likewise the potential benefits to him of having in effect a wife, but without full legal responsibilities. The discussions they had were not specific as to ownership of the home they were moving into. They were specific as to the nature and extent of his commitment to her and the provision of secure accommodation for her. He promised her secure rights of occupation at the house that they were in effect buying together, although in his sole name. He led her to believe that she would have the sort of security that a wife would have, in terms of accommodation at the house, and income. And she relied on that. Without such promise and assurance she would not have given up her house and moved in with him.
17. The second area of dispute is as the nature of the relationship while it lasted. She soon secured full time employment. I do not have the figures but it seems clear to me that the relative disparity in income remained. I accept that she made a contribution to joint expenses and some accounts were in her name (4.154), but to a lesser extent than he did. He was able to pay the major share. I also accept her evidence that the relationship changed, but the reassurances continued see for instance the wills in 2008 at 3.102. In 2007 she began (and completed) a three year course to qualify as a Speech and Language therapist. Although she took out a loan and had family support, the support of the Defendant must have helped her considerably. It has increased her earning ability. She did support him in his work activities and generally, as she asserts.”
The relationship began to deteriorate from about 2009. The evidence about this aspect was sparse. The judge found that there was an inconclusive discussion as to what would happen if the Respondent had to leave the Droitwich home. The judge made few detailed findings about the circumstances in which the relationship finally ended, which he described as “messy”. His essential finding is simply that the Respondent found herself and her daughters homeless. That was evidently in consequence of her having left the house and the locks having been changed before her intended return, although the judge did not so find. Miss Cheryl Jones, for the Respondent, would have wished to supplement the judge’s findings about this episode in order to demonstrate that the circumstances in which the Appellant contrived the exclusion of the Respondent from her home were in and of themselves unconscionable. However I do not think that she needs to go so far. The court is concerned with “a broad enquiry as to whether repudiation of an assurance is or is not unconscionable in all circumstances” - see per Robert Walker LJ in Gillett v Holt
 Ch 2010 at 232. The unconscionability found by the judge, at paragraph 26 of his judgment, was the Appellant’s resiling from his promise, and his failure or refusal “to put the Respondent back in much the same position as she was [in] before she gave up her own house”.
It is trite law that “a representation, if it is to found a claim based on proprietary estoppel, must be clear and unequivocal” – see per Lord Scott of Foscote in Thorner v Major
 1 WLR 776 at 783. Mr Wynne submitted that the judge lost sight of this requirement in that he made no attempt to define what precisely was meant by “providing her with a secure home”. Was it intended that the Respondent should be permitted to stay in the house in Droitwich after the breakdown of the relationship? What would be the position if the Appellant had entered into a relationship with a third party? What was the interest in land connoted by such vague phrases as “a home for life” or “a secure home”?
In his seminal judgment in Taylors Fashions Limited v Liverpool Victoria Trustees Co Ltd
 1QB 133 Oliver J stated at pages 151-152 that, in the light of the more recent cases, the principle of proprietary estoppel:-
“. . . requires a . . . broad[er] approach which is directed at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to enquiring whether circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.”
It is plain that the promise must be of a right in relation to identified land, and that element is here satisfied. Further, we are I think bound by the decision of this court in Greaseley v Cooke
 WLR 1306 to hold that a promise that a person may be allowed to stay in a house for as long as he/she wishes raises, or as I would prefer to put it, potentially raises, an equity in his/her favour – see per Lord Denning MR at page 1311. Lord Denning put the proposition in the way he did because of an argument about the onus of proof concerning detriment, which again does not here arise. Given that binding decision I do not think it necessary to attempt further juristic analysis of the proprietary interest promised.
Mr Wynne submitted that it must, in the light of the judge’s findings as to the Appellant’s attitude to marriage, be inconceivable that the Appellant would have assured the Respondent that he would provide her with accommodation irrespective of whether the relationship continued to subsist. Such a finding would, submitted Mr Wynne, be inconsistent with the judge’s finding that the Appellant “was prepared to provide a home to the Respondent and her two daughters, but it was to be on his terms” – judgment paragraph 12.
I understand this argument and it is an argument which might have succeeded before the judge. However it did not. The judge found that what was said by the Appellant was said by him in the belief that he was providing the Respondent with a home for life. He reassured her that “she would always have a home and be secure in this one.” He told her that he was taking on a “long-term commitment to provide her with a secure home” – see judgment paragraph 15. Further, “he led her to believe that she would have the sort of security that a wife would have, in terms of accommodation at the house, and income.” These findings are inconsistent with any notion that the assurance was of accommodation for only so long as the relationship should subsist. The thrust of the finding in paragraph 16 was to the effect that the Respondent would have an entitlement which would be recognised in the event of breakdown of the relationship, just as would be the contribution of a wife to the assets of a marriage in the event of marital breakdown.
Mr Wynne also submitted that it is impossible to reconcile the suggestion that the Appellant assured the Respondent that she would always have a home whether their relationship continued to subsist or not with the judge’s findings in relation to the Respondent’s primary claim that the Appellant held the property on constructive trust for both parties as tenants in common in equal shares. In relation to this issue the judge found:-
“. . . that it is most unlikely that the Defendant would have or did make any clear promise to the Claimant that she would become an equal owner in the house with him or that he promised her that she would at some future date. It would have been against his interest to do so. And in my judgment he was fully aware of that which is why he made no such promise or agreement.”
I cannot accept this submission either. Just because the Appellant avoided any assurance as to equal ownership it does not follow that he could not have given an assurance as to security of rights of occupation in the house that they were in effect buying together, as the judge put it at paragraph 16. The two are not inconsistent.
For all these reasons I reject Mr Wynne’s first ground of appeal.
I turn then to the second ground, detriment. The requirement of detriment was discussed by Robert Walker LJ in Gillett v Holt
, above, at page 232, where he said:-
“The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances. There are some helpful observations about the requirement for detriment in the judgment of Slade LJ in Jones v Watkins 26 November 1987. There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded – that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved.”
In Thorner v Major
, above, Lord Walker of Gestingthorpe, as he had by now become, endorsed, at page 794, the following passage from the judgment of Hoffman LJ in Walton v Walton
 CA Transcript No 479:-
“21. But none of this reasoning applied to equitable estoppel, because it does not look forward into the future and guess what might happen. It looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept.”
It follows that detriment must here be assessed and evaluated over the course of the relationship.
The judge rightly recognised, at paragraph 26, that an exercise of this sort inevitably required him to have regard to the benefits which had accrued to the Respondent as a consequence of the relationship. The judge first valued, at paragraph 26 of his judgment, what the Respondent had lost in 2002:-
“The promise made was not of a half share in the house, but it was of security. His promise has not been fulfilled. What has she lost? And how is it to be quantified? In my judgment it would be unconscionable for the Defendant to do anything other than to seek to put her back in much the same position as she was before she gave up her own house. In my judgment an award of money must seek to do that. In 2002 she gave up her own house, on which she had spent about £15,000 and she spent the remaining £4,000 - £5,000 she had as her contribution to the setting up of the new house with the Defendant. She also bought a car but still has a car, so that does not fall into account. I have no evidence of the current cost of setting herself up and leaving something over as it was in 2002. In my judgment the fairest approach is to take the 2002 figures and updated them for inflation. Allowing for inflation (Prof. Neg. Bar Association: Facts and Figures 2013.14 at page 165 gives the RPI multiplier for 2002 to date at 1.42) £20,000 now represents £28,400. Since we are dealing with approximations I shall call that £28,500. I note that that is about one quarter of her notional half share in the house. That figure should allow her to set herself up in much the same way as she was in 2002 before she moved in with the Defendant. That is the best I can do to quantify the measure of the prejudice to her by the Defendant’s failure to honour his promise.”
Then he went on:-
“I have in mind the benefits that she obtained during the course of the relationship. But the benefits flowed both ways. I do not think she needs give credit for them.”
The benefits that accrued to the Respondent during the course of the relationship included rent-free accommodation for herself and for her two daughters and the assistance she received enabling her successfully to complete a three year degree course which enhanced her earning ability. The benefits did not however all flow in one direction. Whilst the Appellant and Respondent lived together, in effect as husband and wife, the Appellant too was assisted and supported by the Respondent in the successful pursuit of his career in which he achieved at least one significant promotion over the course of the relationship. His earnings increased accordingly, as will have his acquisition of pension entitlement, a benefit about which the judge had no evidence but in respect of which he was prepared to make an educated assumption. The house in which the Respondent was living and in respect of which she no doubt shouldered the major housekeeping activities, albeit she made no financial contribution, increased in value from £240,000 to £320,000.
Mr Wynne was critical of the judge in failing to take into account that the Respondent had been relieved of the liability to pay rent in Manchester and had lived rent-free in Droitwich. That aspect was however, as it seems to me, simply an inherent and intrinsic element in the Respondent’s decision to rely upon the Appellant’s assurance of security.
There are undoubtedly cases where circumstances which would seem likely to give rise to an equity fail to do so when viewed in the light of the continuum of the relationship as evaluated at the point at which the promisor seeks to renege on his assurance. Sledmore v Dalby
 72 P&CR 196 may be one such case. That however was not a case in which a couple lived together as husband and wife. Even in cases not concerned with a quasi-matrimonial relationship between promisor and promisee, it is clear that where the detriment to the promisee is not exclusively financial, its evaluation is not an exercise in financial accounting – see per Floyd LJ in Davis v Davis
 EWCA Civ 568 at paragraphs 50 and 51. The same is obviously true of benefit. Cases involving couples living together as husband and wife lend themselves still less readily to an arithmetical accounting exercise, as Mr Wynne realistically acknowledged. His complaint was, essentially, that the judge had failed to carry out a sufficiently rigorous evaluative exercise and had failed to bring into account lasting benefits which the Respondent had derived from the relationship.
It is true that the judge’s conclusions on this aspect of the case were economically expressed. But I think that the judge was wise not to be drawn into an exercise of attempted evaluation of the benefits which, as he rightly observed, flowed both ways. Mr Wynne acknowledged that there is in a case such as this a range of activities and mutual support which is simply incapable of financial quantification. The essence of the promise here upon which the proprietary estoppel was sought to be based was that the Respondent should have a home for life, on the strength of which she gave up her own secure home in which she had invested about £15,000 and in turn invested £4,000 -£5,000 as her contribution to the setting up of the new home in which she was to live with the Appellant. What the judge in effect did was to concentrate on the causal link between the assurance relied upon and the detriment asserted, as enjoined by Slade LJ in Jones v Watkins
. The various asserted benefits, flowing in both directions, were the incidents of the relationship whilst it successfully subsisted rather than direct consequences of reliance upon the promise as to security.
All of their Lordships in Thorner v Major emphasised that this is an area in which, quintessentially, an appellate court should be slow to interfere with findings made by a judge who has clearly taken full advantage of seeing and hearing the witnesses who gave evidence before him. Like Lord Rodger in that case, “not only can I not come to a clear view that the judge was plainly wrong in this conclusion, but I see no reason to doubt that he was right.”
That leaves only the question of unconscionability, which as I have already sought to stress above is not a watertight element in the estoppel but rather a feature which permeates all of its elements. It was Mr Wynne’s submission that the judge lost sight of the circumstance that this was not a marriage and that it was not a relationship which was expected or intended to endure indefinitely. Since the relationship had come to an end, during the course of which the Appellant had provided for virtually all of the Respondent’s essential financial needs, and those of her children, how could it be unconscionable for the Appellant to require the Respondent to leave the house? With respect, this misses the point and overlooks the judge’s explicit findings as to the nature of the Appellant’s promise on the strength of which the Respondent gave up her secure home. It focuses on the relationship, thereby losing sight of the nature of the promise and the detrimental reliance. The detriment to the Respondent was not that she embarked upon a relationship with the Appellant but that she abandoned her secure home in which she had invested and invested what little else she had in a home to which she had no legal title. It is the detrimental reliance which makes the promise irrevocable and leads to the conclusion, at the end of a broad enquiry, that repudiation of the assurance is unconscionable.
At the conclusion of Mr Wynne’s submissions and after deliberation we announced that the appeal would be dismissed. These are my reasons for joining in that decision.Lord Justice McFarlane
I agree.Lady Justice Macur
I also agree.