TOLATA update: (1) the use of inference and the role of detriment (2) the issue of illegality since Patel v Mirza

Staying up to date with developing chancery-oriented case law may be something of a headache for even the most experienced family practitioners. Luke Barnes’s article surveys recent developments in the judicial treatment of inference detriment and illegality. 

Inferred intention was authoritatively defined in both Stack v Dowden and Jones v Kernott and distinguished from imputed intention with important consequences. The court may not impute to the parties a common intention to share the beneficial ownership of a property – although it is entirely entitled to draw that inference. Thus it is crucial for practitioners to understand how the courts approach the use of inference.  

Detriment is an essential component in the establishment of a common intention constructive trust as the Court of Appeal has recently confirmed emphatically providing a working definition of what amounts to detriment and confirming that the issue is a matter for the court’s evaluation in the light of all the evidence. 

Patel v Mirza [2016] UKSC 42 saw a dramatic change in the law. A claimant is no longer barred from relief if his...