Williams v Nilsson and another [2021] EWHC 3184 (Ch); [2021] PLSCS 211 provides a salutary lesson on the difficulties that can arise in establishing a common intention trust in the absence of contemporaneous documentary evidence.
The appellant and her ex-husband separated in 2011. Before their separation, they were registered as joint proprietors of the matrimonial home.
It was the appellant’s case that there had been an oral agreement between her and her ex-husband at the material time of their separation that the entirety of the beneficial interest in the property going forward would be hers if she assumed sole responsibility for payment of the mortgage and outgoings associated with the property, which she did (the 2011 agreement).
The appellant’s ex-husband petitioned for divorce in June 2016. He also petitioned for bankruptcy and was declared bankrupt in September 2016. In his bankruptcy application form he declared that he held a 50% share in the property.
During the financial remedy hearing in May 2017 (the May 2017 hearing), the appellant’s ex-husband made an admission, through counsel, that the 2011 agreement was valid.
In 2018, the respondents were appointed as trustees in bankruptcy for the ex-husband. They subsequently applied to the court for an order for possession and sale of the property. The ex-husband took no active part in the proceedings, but attended as an observer. The appellant argued that a common intention trust had been created based on the 2011 agreement. She had no documentary evidence to support the terms of the 2011 agreement. Further, she did not have a copy of the transcript of the May 2017 hearing, though she had made significant attempts to obtain a copy of the same and had been led to believe that she required permission of the court to do so.
The possession hearing took place in March 2021. The appellant sought permission to obtain a copy of the transcript of the May 2017 hearing; explaining the difficulties she had in doing so. The judge informed the appellant that she was responsible for obtaining a copy of the transcript. If she wished to do so, the possession hearing would be adjourned with the requisite wasted costs consequences.
The court made an order for possession and sale. Based on the lack of contemporaneous evidence to support the appellant’s case on the existence of the 2011 agreement, it found that the appellant was unable to prove that a common intention existed.
On appeal, the appellant sought permission to rely on a copy of the transcript. Her primary ground of appeal was that the court had erred in finding that the 2011 agreement did not give rise to a common intention constructive trust.
Having regard to the Equal Treatment Bench Book, the High Court observed that it was unfortunate that the appellant, as a litigant in person, had received a lack of assistance and guidance in how to obtain a copy of the transcript of the May 2017 hearing. In accordance with the overriding objective and the importance of the transcript she would be given permission to rely on it. The transcript revealed the veracity of the appellant’s assertion that the parties had entered into the 2011 agreement. The agreement was sufficient to found a common intention to create a constructive trust. Additionally, the appellant had acted to her detriment in assuming the liabilities for the property, which was sufficient to give rise to a common intention constructive trust.
Elizabeth Dwomoh is a barrister at Lamb Chambers
