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

Date:29 MAR 2021
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Luke Barnes, Barrister, 3 Dr Johnson’s Buildings

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 case must rely on his own illegal conduct (e.g. a scheme to make a fraudulent state benefits claim). Instead the court will consider the underlying purpose of the law he has transgressed, any other relevant public policy affected, and consider if denial of the claim would be a proportionate response, given that punishment is a matter for the criminal courts. Luke surveys recent authorities applying Patel v Mirza

The full article will be published in the April issue of Family Law


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