Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4 October 2001

B e f o r e :

THE HONOURABLE MR JUSTICE FERRIS

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BETWEEN:

MARIE ELIZABETH STEELE
Claimant

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JAMES McLEOD STEELE
Defendant

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Josephine Hayes (instructed by Simon Bennett, Marlow) for the claimant.
John Rylance (instructed by William Sturges & Co) for the defendant.

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Mr Justice Ferris

1. The parties to this action were formerly husband and wife. They met in June 1988, were married on 8th October 1988, separated in December 1991 and were divorced on 18th May 1994.

2. In these proceedings, which were commenced by a writ issued on the 10th February 1997, the claimant seeks to recover from the defendant the sum of £50,440.94 plus interest. This has been presented as a restitutionary claim. The basis of it is that between December 1988 and the end of July 1991 the claimant, at the request or insistence of the defendant, made payments amounting in the aggregate to £50,440.94 out of her own money for the benefit of the defendant. It is said that the defendant was thereby unjustly enriched at the expense of the claimant and that the court can and should award restitution by ordering the defendant to pay this amount plus interest.

3. At the time when he met and married the claimant the defendant, who is a United States citizen, was working as an Assistant Professor of Architecture at the King Faisal University in Saudi Arabia. His previous marriage had been terminated by divorce in April 1988. From that marriage there were two sons, Christopher and Casey, both of whom were in 1988 in full time education, one at university and the other at school. Under the terms of the divorce the defendant was liable for their maintenance and the cost of their education although he was not, it seems, liable to pay maintenance to his former wife.

4. The defendant's financial position in the summer of 1988 was that he had his salary from King Faisal University but no other assets. His salary was paid to him periodically in cash. He used this salary to meet his living expenses in Saudi Arabia and to make transfers to a bank account in his name in a branch of Mellon Bank East in Pennsylvania. The money remitted to this account was used for the maintenance and education of the defendant's sons.

5. The claimant had not been married before she met the defendant. She was employed by British Airways, based at Heathrow airport and paid what she said was a good salary. She owned a house in Windsor, at 8 Helena Road, which was subject to a mortgage but in which there was a substantial equity. She had put this house on the market for sale. She also owned a parcel of land some eight acres in extent known as Maidens Green Acres at Maidens Green, Winkfield in Berkshire. She used this parcel of land for keeping horses and chickens. She had it in mind to erect a chalet or similar modest dwelling on this land, with a view to living there after the Windsor house had been sold. She had one bank account at Barclays Bank, St. Leonard's Road, Windsor. She said in evidence that she lived within her income and that until shortly before her marriage she kept her account in credit. There is no reason to doubt this.

6. There seems to have been something of a whirlwind courtship between the claimant and the defendant after they met when the defendant came to England on holiday in June 1988. The defendant returned to Saudi Arabia in September, just after they had become engaged, and he met the claimant in Bahrain a week or so later. During their visit to Bahrain they chose and purchased engagement and wedding rings. These were paid for by the claimant as the defendant said that he had no money to use for this purpose. They both came back to England for their wedding which, as I have said, took place on 8th October. The claimant paid the expenses of the wedding and wedding reception. She said that it was as a result of these expenses that her Barclays account became overdrawn and I accept this.

7. The day before the wedding the claimant gave notice terminating her employment by British Airways. She said that this was done at the urging of the defendant. He said it was her decision. I need not decide between these claims. I think it was probably a mutual decision which inevitably followed from their intention to live together in Saudi Arabia after the marriage. It seems that the defendant returned to Saudi Arabia quite soon after the wedding, while the claimant remained in England to work out her notice with British Airways. She joined the defendant in Saudi Arabia at about the beginning of November 1988.

8. Between the wedding and the defendant's return to Saudi Arabia, the claimant and the defendant attended at the branch of Barclays Bank where the claimant's account was held and they arranged to transfer that account, which was then overdrawn to the extent of about £3000, into their joint names. Henceforth I will refer to it as "the joint account". No copy of the bank mandate was produced at the trial, but it was common ground that it was in terms which enabled either of the account holders to sign cheques, which did not need to be counter-signed by the other account holder, or to give instructions to the Bank. As the account was operated, however, there was only one chequebook for the account and cheques were always signed by the claimant alone. This was done even in respect of cheques for payments requested by the defendant. The defendant told the claimant that he had no aptitude for managing finances and he was content to leave all this side to her.

9. It is clear that the claimant did not like life in Saudi Arabia. There is a dispute, which I do not need to resolve, whether the defendant left his position at the King Faisal University at the request of the claimant or whether, as the claimant said, his employment there was in any event due to end in April 1989. What is undisputed is that, while he was in Saudi Arabia, the defendant had made the acquaintance of the Dean of Texas Tech University who had indicated to him that, if he ever wanted to leave Saudi Arabia, there would be a job for him at the Texas Tech University. In about March 1989 the claimant decided to take up this offer and he and the claimant left Saudi Arabia. They appear to have made the return in some style, staying for a few days in Cairo (where the defendant had professional contacts to make) and travelling via London to the United States on Concorde. In the United States they appear, amongst other things, to have visited the University of Texas Tech to arrange for the defendant to take up a teaching post there in September 1989. They then returned to England where they were involved together in the project to erect a dwelling of some kind at Maidens Green Acres.

10. In November 1988 a new account ("the farm account') had been opened in the joint names of the claimant and the defendant at the same branch of Barclays Bank as the joint account. I have not seen the mandate in respect of this account, but it appears to have been similar to the mandate for the joint account, with either account holder being entitled to draw cheques. In practice the farm account, like the joint account, was operated by the claimant alone.

11. The reason for opening the farm account was that the claimant envisaged carrying on a commercial business at Maidens Green Acres. I was shown accounts of the claimant trading as "Maidens Green Stud" for the period 4th April 1987 to 31st August 1988 and as "Maidens Green Acres" for subsequent periods. The amounts stated in the income and expenditure accounts for the periods ended 31st August 1988 and 31st August 1989 are, however, fairly modest, with a loss of £552 being incurred in the first year and a loss of £4,914 in the second. This is consistent with the position shown by the bank statements for the farm account which show very little activity until after the end of March 1989. This is hardly surprising as the claimant was working full time for British Airways until October 1988 and was then living with the defendant in Saudi Arabia.

12. The claimant and the defendant went to Texas in August 1989 to prepare for taking up his teaching post there on 1st September 1989. A house in Ransom Canyon was purchased in their joint names at the end of August 1989. I will mention the financial details of this purchase later. Also in August 1989 an account ("the First National account') was opened in their joint names at the First National Bank of Texas in Ransom Canyon. This appears to have been an account on which either account holder could draw, although in practice it was operated by the defendant alone. The defendant's salary from the University was paid into this account. For a time the claimant had employment in Texas and her remuneration was either paid into the First National account or used for household expenses.

13. The parties returned to England for Christmas 1989. Their financial position was not good and no income was being produced from the business at Maidens Green Acres, which had been left in the hands of a friend. The claimant therefore decided to remain in England and to try to put the business on a more profitable footing by producing and selling free-range eggs. The defendant returned to his teaching post in Texas in the new year.

14. After it became clear that the claimant would be spending most of her time in England the house in Texas was sold at a loss in March 1990. The sale was handled by the defendant without much, if any, reference to the claimant. It appears that he was able to make title as the claimant's "attorney-in-fact" without having an express power of the kind that would be required in this country. I will discuss the dealings with the proceeds of sale later.

15. The defendant continued to teach at the Texas Tech University, returning to England during the university vacations. He persuaded the University to allow him to teach at its Overseas Unit at University College London for the term which began in September 1990. After a discussion with the claimant during the Christmas holidays the defendant resigned from the University in January 1991. For the first seven or eight months of 1991 the defendant continued to live with the claimant at Maidens Green Acres. He worked on various freelance writing projects and also as an editor with an organisation named Academy Editions. His efforts to find a teaching position in this country were, however, unsuccessful. During the summer of 1991 he applied for a teaching post at the University of Southern California. His application was successful and he left for California in August 1991. When he returned for the Christmas holiday at the end of 1991 the relationship between the parties had deteriorated to such an extent that they decided to live apart. That was effectively the end of their relationship. They were divorced, as I have already mentioned, on 18th May 1994, after they had lived apart for more than two years.

16. I now turn to the financial affairs of the parties. In reviewing these I will identify the payments which are said to give rise to the claimant's right of restitution by putting them in bold type and giving them an identifying number.

17. As I have already mentioned, at the time of the marriage the joint account was overdrawn to the extent of about £3000. During the next month or so there were various credits and debits to the account. The amounts involved were not particularly large. The outgoings were no doubt attributable to the move to Saudi Arabia and the claimant's living expenses while she worked out her notice. The more significant credits are likely to have been from her employment with British Airways or from her sales of certain small holdings of shares and the sale of her horsebox. The overdraft was cleared on 2nd November, when a sum of £3000 was paid into the account. This was money which the claimant received from selling her car. Thereafter the account slipped back into debit and it was overdrawn to the extent of some £276 on 18th November 1988. On 22nd November a payment of (1)£443.84 was made to Christopher Steele, the defendant's elder son, and the overdraft was increased by this amount. A further (2)£704.65 was transferred to the defendant's account at Mellon Bank East on 15th December 1988 and (3)£1178.02 was transferred to Reeds College (where Christopher Steele was studying) on 4th January 1989. All these payments were made while the joint account was already overdrawn. There were some other small payments out of the account during November and December 1988, but no payments into it.

18. In her witness statement the claimant said that, at the time of the marriage she was completely unaware that the defendant was responsible for paying for the education of his two sons. She continued

It was therefore a complete bombshell when the defendant in January 1989 told me late one night that he was due to pay the next term's fees for his son Christopher's college course and that we did not have the funds to meet this.... The defendant made it plain that I would have to find the money somehow. The next day I had to telephone my bank in Windsor and ask for a temporary overdraft on the strength and security of my house in Windsor. The bank agreed to this and the necessary funds were telegraphed from the account in Windsor to the College in the United States.

19. The transfer which the claimant is there describing is clearly the transfer of £1178.02 made to Reeds College in January 1989. But it is not easy to see why the need to make this payment should come as such a bombshell when two other payments for the benefit of Christopher had been made in the preceding November and December. I think that the bombshell, if that is what it was, probably came in November 1988. It is not surprising that the claimant's memory for detail should have faded over the years, but this instance does, I think, indicate the need for caution in accepting some of the claimant's characterisations of events. The more important facts, however, are that the payments were made and that the claimant caused them to be made. It is also plain that they were made because the defendant requested them.

20. On 20th January 1989 the sum of £400 was paid into the joint account and this was followed on 2nd March 1989 by the much more significant sum of £8000. The defendant was the source of both these credits, the £8000 being part of a termination payment of $25,000 which the defendant received from the King Faisal University. He said that this sum was received by him in cash and that he transferred part of it to the joint account and the rest to his Mellon Bank East account. Although details of the precise exchange calculation are not available, it seems likely that the £8000 represents about half the $25,000.

21. The receipt of £8000 restored the joint account to credit. Almost immediately afterwards a higher rate deposit account ("the HRDA") was opened in the sole name of the defendant and £1000 was transferred to it from the joint account. The opening of the HRDA was done at the suggestion of the manager of the Windsor bank. It was put in the sole name of the defendant with a view to obtaining a more favourable tax treatment of the interest, the defendant not being resident in the United Kingdom for tax purposes. For the purposes of this case the HRDA can be regarded as being on the same footing as the joint account. The defendant makes no claim that it was his separate property.

22. Further minor payments continued to be made out of the joint account and on 28th March 1989 £500 was transferred back into it from the HRDA. On 31st March there was a payment out of (4)£670.92. This is said to have been made to or for the benefit of the defendant, although the claimant has not identified precisely what it was for.

23. On 6th April 1989 (5)£736.50 was paid out of the joint account to Christopher Steele by telegraphic transfer. After this payment the joint account was overdrawn by some £1375.

24. In April 1989 the claimant negotiated what is described as an agricultural mortgage from Barclays Bank. The basis on which this loan was made was that the claimant had intended to use the proceeds of selling her house at Windsor in order to erect a dwelling of some kind at Maidens Green Acres. The sale was, however, taking longer than expected. The claimant said that although only about £15,000 was required for the dwelling she arranged to borrow more in order to cover other expenses. The net amount of the loan, which was £26,000, was credited to the joint account on 4th May 1989. On the same day £1000 was transferred from the joint account to the farm account and £10,000 was transferred to the HRDA. A further £4000 was transferred to the HRDA on 9th May.

25. On 10th May 1989 $1500 was sent by telegraphic transfer to the Mellon Bank East account and the cost of this, amounting to (6)£917.49 was debited to the joint account. This is said by the claimant to have been for Christopher or Casey's expenses.

26. On 12th May a sum of (7)£886.35 was paid out of the joint account by cheque. This sum was described by the claimant as being in respect of

US dollars for use in Texas including travellers cheques, graduation expenses for Christopher Steele including his air fare and the graduation celebration dinner.

As I understand it the claimant and the defendant both went to the United States to attend Christopher's graduation and to see the Texas Tech University where the defendant was to work. This payment represented the expenses, or part of the expenses of that trip. This, together with other expenditure of significant sums not claimed to have been applied for the benefit of the defendant, put the joint account back into overdraft, a situation which was rectified by the transfer of £1500 from the HRDA on 18th May 1989 and a further £600 on 2nd June.

27. On 7th June (8)£146.00 was paid out of the joint account for an air ticket to enable the defendant to travel to Geneva. This journey was made in connection with his freelance writing activities.

28. On 14th June the joint account was debited with (9)£1001.69 in respect of a transfer to Mellon Bank East. This is said to be in respect of the graduation expenses of Casey Steele and a graduation celebration lunch. There was a further transfer to the Mellon Bank East on 12th July, resulting in a debit of (10)£327.09 to the joint account, said by the claimant to be for the defendant's use or benefit while in the United States. On 10th August the joint account was debited with a further (12)£622.10, the amount of a cheque drawn to cover the cost of US dollars or travellers cheques to fund the parties' travel in the United States. It must have been soon after this that the claimant and the defendant went to Texas in preparation for his new post.

29. Three substantial sums came into the joint account in July and August 1989. The first, amounting to £963.91, was an advance payment in respect of a book the defendant had written on the work of an Egyptian architect named Hassan Fahy. The second, amounting to £2500, was the amount of an award named the Aga Khan Award which the defendant received for work done by him. The third, amounting to £7116.85, was the sterling equivalent of a payment in US dollars which was said to be a pension due to the defendant. It is not clear to me precisely how the defendant came to be entitled to this sum, but there seems to be no doubt that it was paid by reason of some activity on his part, rather than on the part of the claimant.

30. Until the end of June 1989 all movements of funds into and out of the HRDA were, with one exception, transfers from and to the joint account. The one exception was a transfer of £4500 to the farm account made on 30th May 1989. Another exceptional movement occurred on 5th July 1989, when there was a debit of (13)£1018.85 in respect of a transfer of funds to Mellon Bank East for the expenses of Christopher or Casey.

31. The long awaited sale of the claimant's house in Windsor was completed in the middle of August 1989 and the net proceeds of sale, amounting to £54,481.85, were paid into the joint account on 18th August. Out of this sum £13,333 had to be paid to a friend of the claimant named Carol, who had lent money in connection with the house. The true net receipts in respect of the sale were thus a little over £41,000.

32. In August 1989, if not earlier, the claimant and the defendant had decided to buy a house in Ransom Canyon where they were to live when the defendant took up his appointment at Texas Tech University. The claimant said that she opposed this purchase because she thought it would be more sensible to rent accommodation. It is clear, however, that she eventually agreed to it because she arranged for the payments which I am about to mention and the house was bought in the joint names of herself and the defendant. On 10th August 1989 the joint account was debited with (14)£3000, which was the sterling equivalent of a transfer to the Mellon Bank East which was made to enable the deposit on the house to be paid. There was a further debit for £139.37 on 15th August. This represented the bank's charges for making the transfer. The claimant has not put it forward as one of the payments in respect of which she seeks restitution, but it must stand on the same footing as the £3000.

33. On 18th August, the day the proceeds of the sale of the Windsor house came into the joint account, that account was debited with (15)£23,000. This sum, converted into dollars, was sent to the United States (either to the Mellon Bank East account or the recently opened First National Bank account) and used in the purchase of the house in Ransom Canyon. The purchase was completed on 31st August 1989, the house being transferred to the claimant and the defendant jointly. The price was $105,000 of which $35,000 was paid by the claimant and the defendant and the remaining $70,000 was borrowed from the First National Bank at Lubbock. As one would expect in the case of an acquisition in joint names, the conveyancing and loan documentation was signed by both the claimant and the defendant.

34. On 21st August (15)£850 was paid to Christopher Steele by cheque drawn on the joint account.

35. On 25th August a sum in excess of £31,000 was transferred out of the joint account to the HRDA. This reduced the balance on that account to a mere £100. There were no further transactions of significance on the joint account during the remainder of 1989, apart from the payment of £13,333 to Carol, although many fairly small payments were made and the account was topped up out of the HRDA on at least one occasion.

36. On 29th August £8300 was transferred from the HRDA to the farm account and on 14th September that account was debited with (16)£7500, in respect of a telegraphic transfer. While a copy of Barclays' voucher in respect of this transfer was not available, the £7500 must be the amount which is shown as a receipt of $11,715 in the First National account on that date. Although the claimant pleaded that this sum was used for the defendant's benefit in the United States, this way of putting it fails to recognise the fact that the claimant herself was in Texas from August 1989 for most of the rest of the year. The reality appears to be that this sum was paid into the joint First National Bank account and used to meet the costs of both parties setting up home in Texas. There was no evidence to suggest any unusual drawings being made out of the First National account by the defendant.

37. I think it is convenient to deal at this point with the sale of the house at Ransom Canyon. The sale appears to have been completed on 10th May 1990, the sale price being $102,000. I accept the claimant's evidence that the defendant told her little about the sale except that the price obtained was less than they had paid nine months earlier. Documents produced by the defendant in these proceedings show that the net amount received, after paying the costs of sale, was $21,701.32. This was paid into the First National Bank account, but $10,000 was immediately transferred to the joint account and is represented by a credit of £5947.88 to that account on 14th May 1990. A further $3000 (converted to £1671.91) was transferred from the First National account to the joint account on 6th July 1990. It is not possible to say precisely what became of the remaining $8000 or so, but the First National account had gone into overdraft to a small extent by 22nd August.

38. Only two payments out of the English accounts are relied upon by the claimant in the period between the middle of September 1989 and the beginning of September 1990. The first is a sum of (17)£636.14 which was debited to the farm account on 30th March 1990. This was said to be the cost of an air ticket for the defendant to fly back to England for the Easter holiday. The second is a sum of (18)£323.86 debited to the joint account on 12th April 1990. The destination of this money is not known. The claimant pleads that it was money for the defendant's use or benefit in the United States, which is her usual claim in respect of money which was the subject of a telegraphic transfer but the precise use of which she cannot explain.

39. As I mentioned earlier, the claimant decided to remain in England in 1990 and to try to build up the profitability of her business at Maidens Green Acres by expanding the free range egg side of the business. The joint account was again overdrawn by this time, as was the farm account, and the money in the HRDA had all gone. In April 1990 she, jointly with the defendant, borrowed £10,000 from Barclays Bank under a Business Loan Agreement, the main purpose of which was to finance the purchase of a new poultry house. The money came into the farm account on 17th April 1990 and was almost immediately expended on purchases made in connection with the farm business. Further substantial expenditure continued to be paid out of the farm account during the summer of 1990 and by early August the farm account was overdrawn to the extent of £12,292.31. On 7th August a new business loan of £10,000 was obtained from Barclays, which went to reduce this overdraft.

40. In April 1991 a further business loan of £19,900 was made by Barclays. This produced no new money. It was used exclusively to repay the two business loans made in 1990. This new loan was secured by an all moneys Legal Charge over Maidens Green Acres dated 15th April. This Legal Charge was executed by the claimant as owner and by the defendant as occupier and they both entered into a joint and several covenant to pay to the bank whatever might be due to the bank from them or either of them.

41. During 1990 there were credited to the joint account two further sums in respect of advances for the defendant's work on Hassan Fahy. £5016.63 was received on 23rd March 1990 and a further £5000 was received on 8th June 1990.

42. In addition to the accounts which I have mentioned so far the Claimant had, from at least early in 1989 and probably before then, an account in her sole name with Nationwide Anglia Building Society ("the Nationwide account"). Until August 1990 this account was of no significance, the transactions in it being few in number and the balance at any given time being very small. Between 30th August 1990 and 14th November 1990 there were credits of more significant sums, amounting to a total of £1075 and on 11th July 1991 there was a further credit of £820. It is not clear what was the source of these sums, but some at least of them may have represented grants in respect of the free range egg business. Within a few days of each credit an almost equal amount was transferred out of the Nationwide account by telegraphic transfer. The amounts in question were as follows:

43. It is not absolutely certain where these amounts were transferred to, but $771.90 was credited to the First National account on 5th September and $1093.95 was credited to that account on 3rd October. These appear to be the dollar equivalents of the sterling amounts transferred on those dates. The First National account statements for the dates of the other two transfers are not available, but it seems reasonable to infer that these amounts too came into the First National account. The claimant has pleaded that all four amounts were for "the defendant's expenses and/or Christopher or Casey Steele's expenses" but she did not explain in any greater detail what she thought the money was spent on.

44. A number of further payments were made out of the joint account during 1991. The first of these was made by cheque. All the rest were by telegraphic transfer. The payments in question were:

45. Various sums in respect of the defendant's earnings were credited to the joint account during 1991. Until the end of June 1991 he was in receipt of a salary, paid monthly, from a source which he identified as "VCH Cambridge" which is, I think, the same organisation as Academy Editions previously referred to. The total amount received from this source was £7405.85. Further sums, amounting together to £9727, were received in respect of the defendant's writing activities.

46. The individual payments which I have identified and numbered (1) to (29) amount altogether to the £50,440.94 which I mentioned at the outset of this judgment. In her pleaded case the claimant put her claim for restitution in respect of these sums and her consequential claim for interest on two alternative bases. The first was that the payments or transfers in question were made "at the defendant's requests and/or insistence ... from monies beneficially owned by [the claimant] for the purposes of and to the use and benefit of the defendant including the discharge of his liabilities to educate and maintain his said sons".

47. The alternative case was that, in order to fund these payments, the claimant at the request or insistence of the defendant executed the legal charge over Maidens Green Acres dated 15th April 1991 and on 13th June 1991 pawned her jewellery.

48. In presenting the claimant's case Miss Hayes emphasised that it is a restitutionary claim and she referred me to the observation of Lord Goff of Chieveley in Kleinwort Benson Ltd v. Glasgow City Council [1999] 1 AC 153 when he said (at page 167):

Where, however, as here, the claim is for the recovery of money paid under a supposed contract which in law never existed, it seems impossible to say that the claim for the recovery of the money is based upon a particular contractual obligation. In truth the claim is simply a claim to restitution which in English law is based upon the principle of unjust enrichment.

49. While the issue in the Kleinwort Benson case was quite different from that in the present case and the House of Lords said nothing to indicate the scope of the principle of unjust enrichment, I accept entirely that the current approach of English law to cases of restitution is to apply that principle rather than to resort to other theories. Miss Hayes referred me to the discussion of what that principle is in Goff and Jones, Law of Restitution, 5th edition at pages 11-15 and particularly to the passage at page 15 where it is said

It [viz. The principle of unjust enrichment] presupposes three things. First, the defendant must have been enriched by the receipt of a benefit. Secondly, that benefit must have been gained at the plaintiff's expense. Thirdly, it would be unjust to allow the defendant to retain that benefit.

50. It was a fundamental part of the claimant's case that her money had been used to confer benefits on the defendant. As my examination of the facts has shown, virtually all the payments relied upon came out of an account in the joint names of the parties, usually the joint account, but sometimes the farm account. The only exceptions are the four payments out of the Nationwide account, which I will consider separately. The claimant's proposition was that all the money in these accounts in joint names belonged beneficially to her. In the course of argument, however, this proposition was modified so as to assert, as an alternative, that a high proportion of the money in the accounts in joint names belonged beneficially to the claimant. In examining these propositions the starting point must, I think, be to examine whether it is correct to say that money in a joint account can be said to belong to one of the account holders rather than the other. Clearly this may be the case where two or more account holders are trustees for one of themselves, but nothing of this kind can be said here unless it is an automatic consequence of holding money in a joint account.

51. The question of ownership of money in a joint account arises quite frequently in disputes between husband and wife or cohabitees. I was referred to the discussions of this question in Rayden and Jackson on Divorce, 17th edition, Vol 1, para 29.18; Halsbury's Laws of England, Current Service, Vol 22, para 1037; Butterworths Family Law Service, Binder 4, para 177; Miller's Family Property and Financial Provision, 3rd edition, page 55; and Dymond's Capital Taxes, para 10.400 et seq. All these texts speak with remarkable unanimity. The position is summarised in the paragraph from the Current Service to Halsbury's Laws as follows:

Where a husband and wife have a common purse and a pool of their resources, whether in a joint banking account or otherwise, the remuneration of one spouse is generally regarded as being earned on behalf of both and to be joint property, and amounts paid in and withdrawn by each spouse are irrelevant. This is not the case, however, where one spouse provides all the money in the joint account and it is simply used as a matter of convenience of administration.

52. In Jones v. Maynard [1951] Ch 572, Vaisey J said (at page 575):

In my judgment, when there is a joint account between husband and wife, and a common pool into which they put all their resources, it is not consistent with that conception that the account should thereafter ... be picked apart, and divided up proportionately to the respective contributions of husband and wife.

53. The leading case in this field is Re Bishop deceased [1965] Ch 450 where Stamp J said, at page 456:

Where a husband and wife open a joint account at a bank on terms that cheques may be drawn on the account by either of them, then, in my judgment, in the absence of facts or circumstances which indicate that the account was intended, or was kept, for some specific or limited purpose, each spouse can draw upon it not only for the benefit of both spouses but for his or her own benefit. Each spouse, in drawing money out of the account, is to be treated as doing so with the authority of the other and, in my judgment, if one of the spouses purchases a chattel for his own benefit or an investment in his or her own name, that chattel or investment belongs to the person in whose name it is purchased or invested: for in such a case there is, in my judgment, no equity in the other spouse to displace the legal ownership of the one in whose name the investment is purchased. What is purchased is not to be regarded as purchased out of a fund belonging to the spouses in the proportions in which they contribute to the account or in equal proportions, but out of a pool or fund of which they were, at law and in equity, joint tenants. It also follows that if one of the spouses draws on the account to make a purchase in the joint names of the spouses, the property purchased, since it is purchased in joint names, is, prima facie, joint property and there is no equity to displace the joint legal ownership. There is, in my judgment, no room for any presumption which would constitute the joint holders as trustees for the parties in equal or some other shares.

54. In Heseltine v. Heseltine [1971] 1 WLR 342 Lord Denning said (at page 347)

In some cases where husband and wife each contribute to a joint account, the proper inference is that they are putting their moneys into the account with the intention that they should belong to them both jointly. If the marriage breaks down, investments made out of that account belong to them jointly, usually half and half, although in the name of one only: see Jones v. Maynard [1951] Ch 572. But there are other cases where one party provides all the money in the joint account, and it is only opened and used as a matter of convenience of administration. In such cases if the marriage breaks down, the moneys belong to the one who provided them. So do the investments made with those moneys.

55. It is not easy to reconcile what Lord Denning said about the ownership of investments bought in the name of one party out of money in the first type of joint account with what Stamp J had said about the same thing, but this is not a matter of importance in the present case which, except in relation to the house at Ransom Canyon, concerns money which has been spent rather than invested. With that exception the Court of Appeal said nothing to cast doubt upon the correctness of the principle stated in Re Bishop, but found on the facts of that case that the money in the account belonged solely to the wife.

56. Miss Hayes submitted that this is a case where the claimant's own account had been put into joint names for administrative convenience, so that the result must be similar to that arrived at on different facts in Heseltine v. Heseltine and contemplated by Stamp J as an exception to the general principles which he stated in Re Bishop. In my judgment this is manifestly not the case. The account was overdrawn when it was transferred into joint names and the main effect of the transfer at that stage was to make the defendant, as well as the claimant, personally liable to the bank for the amount of the overdraft. No type of 'administrative convenience' could have been in the contemplation of the parties and none was suggested in evidence. It might have been administratively convenient for the defendant to be able to draw cheques on the account or to give instructions for telegraphic transfers, but both parties agreed that these things were in fact done exclusively by the claimant (who said that the defendant asked her to take over the management of his finances) and I infer that this was what they always had in mind.

57. Further, and most important of all, an analysis of the transactions on the joint account shows that the account represented a pooling of resources. Between the time of the marriage and September 1991 the defendant paid into the joint account the entirety of his receipts with the exception of (i) his salary while he was working in Saudi Arabia (which was no doubt spent on living expenses in that country, including the claimant's living expenses while she herself was there) and (ii) his salary from UTT (which was paid into the First National joint account and, no doubt, spent on living expenses in Texas, including the claimant's living expenses during the four or five months that she lived there with the defendant). The money attributable to the defendant which was paid into the joint account included about half of his terminal bonus from King Faisal University, the whole of the income from his writing activities, the Aga Khan prize money and the whole of the defendant's earnings from his post in England during the first part of 1991. Likewise the claimant paid into the joint account such money as became available to her, including such items as her British Airways pay for the period while she was working out her notice and the proceeds of sale of her car and certain shares.

58. The HRDA, as I have said, is to be regarded as an extension of the joint account, from which all the money paid into the HRDA was drawn. In my view the same applies to the farm account, which was in joint names and into which was paid money from the joint account or the HRDA and the earnings of the free range egg business.

59. On the face of it, therefore, this is a case in which the principles stated by Stamp J in Re Bishop are applicable and it is not possible to say that the claimant was, to the exclusion of the defendant, entitled to any particular part of the money standing to the credit of the joint account, the farm account or the HRDA. That money belonged to them jointly and, even if it had been drawn out by the defendant and applied for his own purposes, that withdrawal would have been regarded as made with the consent of the claimant and as giving her no right of recoupment. The fact that the withdrawals were made not by the defendant but by means of cheques signed by the claimant or instructions given by her to the bank to make telegraphic transfers only serves to emphasise the fact that she expressly consented to these withdrawals.

60. I pause to observe that a number of the payments relied upon by the claimant were made while the account to which they were debited was already overdrawn. This makes it even less realistic to speak of such payments being made out of the claimant's money. The true analysis in such cases is, I think, that as the claimant and the defendant were jointly and severally liable to the bank for the amount of the overdraft, the payment is to be treated as being made at their joint expense. This produces the same result as in the case of a payment made while the account was in credit.

61. Miss Hayes sought to avoid these results by advancing a different basis on which a part of the money in the joint account, the farm account and the HRDA should be attributed to the claimant. She referred to Barlow Clowes International Ltd v. Vaughan [1992] 4 All ER 22, where the Court of Appeal was concerned with the distribution to investors, who had invested different amounts at different times, of a fund which represented what was left of the amounts invested but which was inadequate to satisfy all the investors in full. At first instance distribution had been ordered in accordance with the rule in Clayton's Case (1816) 1 Mer 572, the effect of which was to favour later investors at the expense of earlier ones. On appeal it was held that distribution should be pari passu amongst all investors rateably in accordance with the amounts due to them. A third possible method of distribution, described as the 'rolling charge' or 'North American' method was canvassed in argument. It was referred to by Dillon LJ in his judgment at page 27, but rejected as being impracticable. While Miss Hayes seemed to flirt with it as a possibility in the present case her main submission on the basis of Barlow Clowes was that, just as the Court of Appeal had there preferred distribution pari passu to the application of Clayton's Case, something similar should be done in the present case. As I understood it, what Miss Hayes proposed was that the respective contributions of the claimant and the defendant to the various accounts between the marriage and the separation should be aggregated and that the parties should be regarded as entitled to the money in each account at any given time in the same proportions as their aggregate contributions over the whole period bear to each other.

62. I have no hesitation in rejecting this submission. Barlow Clowes, on which it was based, was a very different type of case. There was no joint account there. The problem was the distribution of a residual fund, not the attribution to individual investors of payments previously made out of that fund. The latter problem would be addressed by the application of the 'rolling charge' or 'North American' method, but this method appears never to have been applied in England and was expressly rejected in Barlow Clowes. In my judgment nothing in Barlow Clowes provides any basis for departing from the now well established principles in respect of joint accounts which emerge from the authorities I have mentioned.

63. Accordingly I find that, insofar as the claimant relies upon payments out of the joint account, the farm account and the HRDA, there is no basis for saying that the defendant has been enriched by such payments at the expense of the claimant. In expressing this conclusion I assume in favour of the claimant that the payments in question can be said to have enriched the defendant. I would add, however, that I regard this proposition as extremely doubtful in respect of the payment of outgoings which have secured no permanent benefit to the defendant and which, in the case of some travelling expenses and similar items, appear to have been for the joint benefit of the parties, even though the occasion for the travel may have been an event connected with the defendant's sons. I also find it unacceptable that the defendant should be said to have been enriched by the payment of such an item as his air fare to Geneva for a visit connected with his writing activities, the entire proceeds of which were paid into the joint account.

64. Something further needs to be said in respect of the payment of £23,000 for the Ransom Canyon house. In her pleaded case the claimant sought to treat the whole of this sum as being paid out of her money for the benefit of the defendant and she gave no credit for the amounts which came back into the joint account when the house was sold. This illustrates, in my judgment, the wholly false basis on which the claimant's case is built. For the reasons which I have stated the £23,000 cannot, in my view, be regarded as paid out of the claimant's money. It was paid out of money belonging to the claimant and the defendant jointly and it was used to acquire a new asset (in the form of the Ransom Canyon house itself) which likewise belonged to them jointly. The claimant may, as she said, have opposed the purchase of a house in Texas but she went along with it and herself gave instructions for the £23,000 to be transferred and executed the conveyancing documents. In these circumstances I regard it as impossible for her to try to distance herself from the acquisition of the Ransom Canyon house and to claim to treat this as enrichment of the defendant.

65. I would add that it appears to me that the claimant also cannot justifiably complain that the whole of the net proceeds of sale of the Ransom Canyon house did not find their way back to this country. It is clear that they were paid into the First National account, which was a joint account. In the absence of evidence to the contrary I must assume that the law relating to the ownership of the money in this account is the same as the law of England and, in accordance with the principles stated in Re Bishop, money drawn out of that account by the defendant and used for his own purposes must be regarded as drawn out with the claimant's consent and as giving rise to no claim on her part.

66. Slightly different considerations apply to the four payments made out of the Nationwide account. This account was in the sole name of the claimant and I assume the money standing to the credit of the account belonged to the claimant until it was paid away. But the destination of the payments was the joint account with First National. (As I have said, this can be shown with almost complete certainty as regards two of the payments and is likely to have been the case with the other two). The effect of this, in my judgment, was not to enrich the defendant but to subject the money to the joint account regime. The claimant has not said that any of the payments out of the First National account represented payments of her money and if she were to do so the suggestion would, in my view, be misconceived.

67. In any event the transfers from the Nationwide account need to be looked at in the light of the other financial transactions between the parties. Three of the payments, amounting together to £1330, were made between September and November 1989. Earlier in that year over £10,000 earned by the defendant from his work on Hassan Fathy was received into the joint account. The fourth payment of £815 was made in July 1991. This came at the end of a period of some months in each of which considerably larger sums which had been earned by the defendant were received into the joint account.

68. I come next to the claimant's alternative case based upon the proposition that, at the request or insistence of the defendant, the claimant executed the Legal Charge over Maidens Green Acres which is dated 15th April 1991 and pawned her jewellery on 13th June 1991. The implication seems to be that these things were done in order to raise money which was applied for the benefit of the defendant, although this is not expressly pleaded. Without such an implication the bare allegation of the creation of the Legal Charge and the pledge leads the claimant nowhere. The implication is, however, at variance with the facts.

69. So far as the Legal Charge is concerned, no new money was raised by it. The new loan which was made in April 1991 was used to pay off the two business development loans which had been made in the preceding year. The amounts raised by these loans appear, so far as one can trace them, to have been used for the development of the free range egg business. I find it impossible to spell out of this any kind of unjust enrichment of the defendant. The underlying argument seemed to be that, if so much of the proceeds of the claimant's Windsor house had not been spent on the Ransom Canyon house and in enabling the defendant to maintain his sons, it would not have been necessary for the claimant to borrow money from the bank in order to finance her development of Maidens Green Acres. But this is not the way in which this part of the case is pleaded. Moreover, if it were so pleaded, it could not be made good except by attempting to unpick the joint account in a way inconsistent with the decisions in Jones v. Maynard and Re Bishop.

70. As to the pawning of the jewellery, the claimant's evidence that she pawned her jewellery on two occasions and eventually sold it was not disputed. One can well see that the necessity to do this was deeply distressing to her. But there was nothing to show what became of the money raised by the pledges, where the money to redeem the jewellery came from or what was done with the proceeds of sale. The likelihood seems to be that the money came into and went out of the joint account, but there was nothing to connect it with any particular payment said to have been for the benefit of the defendant. In my judgment this limb of the claim gets the claimant nowhere.

71. Miss Hayes referred me to a number of principles and authorities in addition to those which I have already mentioned. Thus she cited decisions on the so-called 'equity of exoneration', including Hudson v. Carmichael (1854) Kay 613; Re Cronmire [1901] 1 KB 480; Hall v. Hall [1911] 1 Ch 487; and Re Pittortou [1985] 1 WLR 58. She also referred to the principle under which a principal debtor is obliged to indemnify a surety, citing Anson v. Anson [1953] 1 QB 636 and In Re a Debtor (No. 24 of 1971) [1976] 1 WLR 952. I do not think I need to consider these authorities, which relate to factual situations some way removed from those of the present case. Insofar as they illustrate general principles I think that Miss Hayes herself was disposed to submit that they are examples of the wider principle of unjust enrichment on which she relied.

72. There are two other aspects of the case which I must mention briefly. The first is that on 22nd May 1992 a firm of solicitors named Owen White from Feltham in Middlesex wrote to the defendant saying that they represented the claimant. They said that they had discussed the matrimonial affairs of the parties at some length with the claimant and

she is prepared to agree that a deal is entered into whereby she agrees to claim no further monies from you and you agree to make no further claims against her provided that you pay to her the sum of £2800 in respect of various debts.

Owen White enclosed a deed to give effect to this arrangement, which the defendant signed and returned, paying the sum of £2800 soon afterwards. It appears that the claimant never signed the deed herself and in these proceedings she has asserted that it does not bind her and that Owen White were not, as they said, representing her.

73. It was pleaded on behalf of the defendant in this action that any claim for restitution which the claimant would otherwise have had was compromised by this exchange of correspondence and the payment of £2800 and is no longer maintainable. At the trial, however, Mr. Rylance did not pursue this line of defence. He accepted that the view expressed by Mr. Terence Etherton QC (as he then was) sitting as a High Court Judge on 14th January 2000 in giving judgment on an application to strike out the claim in this action was to be regarded as correct. I therefore comment no further on this point.

74. The other aspect of the case which I must mention is that Mr. Rylance relied on laches and on limitation as defences to the claimant's case. On the conclusion which I have reached on the substantive issues the defendant does not need to rely on these defences. I shall therefore say nothing about them except to make it clear that they were not abandoned.

75. I appreciate that the claimant is bitter that not only did her marriage collapse but while it lasted she experienced increasing financial stringency and the dissipation of the proceeds of sale of her house. She is also resentful of the fact that significant sums had to be paid out for the education and maintenance of the defendant's sons by his first marriage. She has managed to convince herself that all this was done at her expense. I do not consider that this was truly the case, but even if the claimant has borne an unfair share of the over-spending which took place between 1988 and 1991 this does not, in my judgment, give rise to the claim in restitution which she seeks to maintain in these proceedings.

76. The claimant's action must therefore be dismissed.