Dear All,

Apologies for not including the link: the judgment can be found here - http://www.supremecourt.gov.uk/docs/UKSC_2010_0130_Judgment.pdf

Best wishes,
James
________________________________________
From: Enrichment - Restitution & Unjust Enrichment Legal Issues [ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of James Lee [j.s.f.lee@BHAM.AC.UK]
Sent: 09 November 2011 21:14
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG] UK Supreme Court on Cohabitation and Constructive Trusts

Dear Colleagues,

The UK Supreme Court has just handed down judgment in Jones v Kernott [2011] UKSC 53, a case on constructive trusts in the cohabitation context. This is the first time that their Lordships have visited the area since the controversial House of Lords decision in Stack v Dowden [2007] UKHL 17. The issue was really relatively narrow, relating to post-acquisition matters, the question whether the court can infer an intention to vary the respective entitlement under a common intention constructive in the absence of an express agreement. (Baroness Hale had anticipated this in Stack, at [70]).

The parties had lived together in the relatively property for eight years, and then separated. The respondent moved out. It was accepted that they had equal shares at the time of the separation. But for the next thirteen years the appellant took sole responsibility for the property, with the respondent making no contribution to the outgoings. The first instance judge had held that the appellant was entitled to a 90% share, but the Court of Appeal held that the shares remained equal. This was in line with the general approach of the Court of Appeal in the cases since Stack, which has been to adopt a restrictive attitude to the relevance of post-acquisition matters where there is no express agreement.

It is perhaps worth noting that in September of this year, the Government announced that it does not intend to take forward the Law Commission’s proposals (which were produced in 2007, shortly after Stack) - the Justices comment with disapproval on the absence of legislative activity.

The Supreme Court has unanimously allowed the appeal, restoring the judge’s assessment. But there is a difference in approach between the Justices, with the majority relying on an inference from the facts. The minority imputes that intention to the parties. In the joint leading judgment of Lord Walker and Baroness Hale, there is a survey of some of the academic responses (including the work of William Swadling) to Stack, and clarification of how the Justices view the state of the law.

Amongst many other observations, at [25], Lord Walker and Lady Hale state,

25. The time has come to make it clear, in line with Stack v Dowden (see also Abbott v Abbott [2007] UKPC 53, [2007] 2 All ER 432), that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit (or indeed the rest of the purchase) in unequal shares. The presumption is that the parties intended a joint tenancy both in law and in equity. But that presumption can of course be rebutted by evidence of a contrary intention, which may more readily be shown where the parties did not share their financial resources.

Although problems of application will remain, the case is worth reading, and at the very least it is encouraging to see the Supreme Court engage openly with academic criticism of recent decisions. Now, time to revise the lecture handouts…

Best wishes,

James

--
James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk>



Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx

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This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.