Case No: A3/2000/0503
Neutral Citation Number: [2001] EWCA Civ 955 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (MR DAVID OLIVER QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 21st June 2001

B e f o r e :

LORD JUSTICE HENRY
LORD JUSTICE ROBERT WALKER
and 
LORD JUSTICE LONGMORE
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	WHITE	Appellant	
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	WHITE	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr J Waters (instructed by Enever Freeman & Co for the appellant)
Mr P Noble (instructed by The Northwood Law Practice for the respondent) 

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Judgment
Lord Justice Robert Walker: 
1.	This is an appeal (with permission granted by Peter Gibson LJ) from an order made on 10 August 1999 by Mr David Oliver QC sitting as a deputy judge of the Chancery Division of the High Court.  The deputy judge gave judgment in favour of Mr Barry White, the claimant in a dispute between himself and his brothers, the defendants Mr Peter White and Mr Brian White.  I will for simplicity (and without any disrespect) refer to them by their first names.  Peter has died since the deputy judge’s order but as he and Brian were sued primarily as their late mother’s executors the appeal is properly constituted with Brian alone as the appellant.
2.	This is a most regrettable family dispute concerning beneficial ownership of a freehold property now known as 26A and 26B Wingfield Way, South Ruislip, Middlesex.  Originally this was a large council house with four bedrooms.  This house was known (for reasons which were explained in the oral evidence but which it is not necessary to repeat) as 26A.  Later the house was divided into two separate units of accommodation, the ground floor being called 26A and the upper floor being called 26B. The documentary evidence does not always accurately reflect these details.  
3.	The house was for about 40 years the matrimonial home of Mr Peter Joseph White (who was often called Alec) and Mrs Rose Lilian White.  There they brought up their five children, that is the three sons already mentioned and two daughters, Joy (who became Mrs Paterson) and Sheila (or Samantha, who became Mrs Woods).  There seem to have been strong family ties and strong family tensions, a point reflected in several of the witnesses’ oral evidence.  Most tellingly perhaps Mrs Paterson said in her evidence in chief:
"My mother just wanted everything to be happy.  She couldn’t understand, and she hated the boys fighting.  They fought all their life.  Barry and Brian being very close to each other, they had this love-hate relationship through business.  Mummy just wanted them to stop - she said ‘for goodness sake, these boys must stop this fighting’.  She hated their fighting."
Sadly antagonism between Barry and Brian seems to have troubled Mrs White until the end of her long life.  
4.	By the 1970’s the children had left home and the local authority (the London Borough of Hillingdon) thought that the house was larger than the Whites needed.  However they did not want to move and considered whether they could buy the house under the ‘right to buy’ scheme.  They had first considered that possibility in the early 1970’s but it seemed beyond their financial means.  The possibility was seriously addressed again in 1979, when the Whites had the opportunity of acquiring the house for 50 per cent of a valuation of £27,500.  But they were by then both over 70, and pensioners.  Different members of the family were approached but most had existing family commitments.  The outcome was that Barry (who had recently split up with his partner, Ms Elizabeth Pearce, and returned to live with his parents) proposed that he should take on the responsibility for a mortgage loan to buy the house.
5.	As the right to buy scheme was involved it was necessary for Mr and Mrs White (as well as Barry) to be purchasers of the property and to be liable as covenantors for the mortgage loan (obtained initially from Hillingdon).  But the plan was that in practice Barry would pay for the mortgage and for the conversion of the property, that his parents would live rent-free downstairs for the rest of their lives, that Barry would live upstairs once it had been converted, and that eventually Barry would (through the mechanism of survivorship under a joint tenancy in equity as well as at law) become sole legal and beneficial owner of the whole property.  
6.	There is no doubt that that plan did not work out smoothly.  In particular, Barry got into financial difficulties and his parents helped out, so far as they could, by paying the equivalent of their old rent as a contribution to the mortgage and the cost of the conversion.  They also paid half of the outgoings for services.  But (although any such agreement was denied in the amended defence and counterclaim) it became apparent at trial that the defendants accepted that there had initially been an oral agreement on those lines.  Thus Brian agreed in cross-examination:
	"Q	But you accept that that was the agreement 	between Barry and his parents, that he would 	pay the money and the house would then be his.
	A	That was the initial agreement when the house was purchased."
Peter did not agree but he knew much less of what was going on: his evidence was that even in 1992 he thought that Barry was no more than a guarantor.
7.	So much, then, seems to have been more or less common ground at trial.  The pleadings show that it was also common ground that the property was acquired for £13,750 by a transfer dated 24 November 1980 or thereabouts, and that clause 6(a) of the transfer contained an express declaration of trust for Mr White, Mrs White and Barry “as beneficial joint tenants”.
8.	There, however, the common ground rapidly comes to an end.  From this point in the chronology there is a good deal of controversy both as to the facts of the matter and as to their legal significance. There is also a good deal of obscurity (for anyone who reads only the deputy judge’s judgment) as to some fairly basic primary facts which ought to be uncontroversial, such as the remortgage in 1985 which had the effect of substituting Barclays Bank for Hillingdon as mortgagee, the grant to Barry in 1986 of a long leasehold interest in 26B, and the charge of that leasehold interest by Barry to Abbey National in 1989.  
9.	This court has been told that the deputy judge had about 1500 pages of documentary evidence before him, so that the answers were probably to be found somewhere in the trial bundles.  But the deputy judge (having reserved judgment for over three months) gave quite a short judgment which did not go into the sequence of events in any great detail.  Nor did it contain any detailed assessment of the oral evidence which the deputy judge heard over four days.  These are indeed the main grounds of appeal, in which Brian is seeking an order for a new trial.  It will be necessary to consider the grounds of appeal in detail in due course.  But the best course will be to summarise the rest of the facts (disputed or undisputed) as they were found by the deputy judge in his judgment, supplementing them with some undisputed facts which were not recorded in the judgment.
10.	The deputy judge stated that the process of converting the property took longer than expected, and Barry fell into difficulties with his bankers.  That is not in dispute, although it passes over any detailed findings about the successive remortgages.  Barry’s case, on which the judge made no finding, was that Barclays had acted improperly in paying off the Hillingdon mortgage so that it could itself charge interest at a higher rate, and that that was why he was in dispute with Barclays.  In any case the outcome was that early in 1989 Barclays started proceedings for possession of the whole property.  Formal notice of the proceedings was given to Mr and Mrs White, who were both mortgagors and occupants.  It is easy to understand that this must have come as a severe and unwelcome shock to them.  The oral evidence was that Mr White was very angry and Mrs White was very upset.  They were both old-fashioned people who believed in paying their bills by return of post, whereas Barry took a pride in living on overdraft and (as he himself said in chief) not paying until he got the red reminder.  
11.	After learning of the proceedings Mr and Mrs White spoke to Brian, who took them to see a firm of solicitors, Enever Freeman & Co.  That firm, and especially a partner named Mr Christopher Bennett, play an important part in the story.  On 12 May 1989 Mr Bennett of Enever Freeman saw Mr and Mrs White with their son Brian.  This seems to have been the first of only two occasions on which Mr Bennett actually took instructions from Mr and Mrs White, or gave advice to them, face to face.  A sad feature of this case is that from this point, that is from May 1989 until their deaths (in 1992 and 1995 respectively) Mr and Mrs White were torn between two camps.  On one side there were Brian, and Mr Bennett and his firm (taking instructions through or from Brian) seeking to establish Mr and Mrs White’s proprietary rights in the property.  On the other side there was Barry (who said that he felt betrayed by his parents’ new attitude as presented by Mr Bennett) seeking to establish his title to the property.  As Mrs Paterson put it, the boys were fighting and Mrs White in particular hated it.
12.	I return to the judgment.  The indisputable outcome of the Whites’ consultation with Mr Bennett was that on his advice they gave notice to Barry severing the beneficial joint tenancy.  This notice was given by Enever Freeman under cover of a letter dated 16 May 1989.  The letter (and this is my own comment, not a summary of the judgment) was expressed in quite aggressive terms, referring for no obvious reason to possible intimidation of his parents by Barry.  It called on Barry to execute an immediate transfer the effect of which would be to delete his name from the title.  To my mind it is unsurprising that Barry, in his turn, found this a very unwelcome shock.
13.	Again I return to the judgment.  The immediate threat of possession proceedings by Barclays was seen off, partly (and perhaps largely) through the efforts of Mr Bennett, who sent an equally combative letter to the bank.  The judge said that matters were then in abeyance until 1992.  Certainly there was no litigation or immediate threat of litigation as to the effect of the notice of severance.  But it is clear from Barry’s evidence that he was seriously upset.  He wished to resolve the matter by obtaining a transfer of the property into his sole name and at some stage he instructed solicitors, Cowle Smart & Co of Cheltenham. 
14.	The deputy judge did not give any explanation of how Barclays was seen off.  In fact (as this court was told without contradiction) the Barclays mortgage was paid off and Barry refinanced his borrowings by charging to Abbey National a 999-year lease of no.26B granted to him on 25 November 1986.  He alone was responsible for this borrowing, but the other details of these transactions remain a mystery.
15.	I set out the judge’s account of what followed (modifying it only so as to use the same nomenclature as in this judgment):
"In the course of early 1992 Barry had instructed his solicitors, Messrs Cowle Smart & Co, to seek a formal transfer of the property into his name.  As a result Brian consulted, ostensibly on behalf of his parents, Mr Bennett of Enever Freeman & Co once again.
In the course of June 1992 Mr Bennett, on behalf ostensibly of the late Mr and Mrs White, therefore engaged in correspondence with, first of all, Barry and, secondly, Cowle Smart & Co, refusing to execute a transfer of the property.
Following the admission of the late Mr White to hospital in early July 1992, [Mr Bennett] continued to refuse to countenance the execution of a proper transfer.  Moreover, on the 29th July 1992, his partner, Mr Copley, was responsible for the drawing and execution by the late Mr and Mrs White of the wills under which the Defendants claim their interest in the property.
I have in evidence an attendance note drawn by Mr Copley of his attendance upon the late Mr and Mrs White in connection with the execution of that will.  It is right to say that the will was executed in the presence of Peter, with Brian also engaging in the discussions with Mr Copley.
Those two occasions are the only occasions upon which anybody on behalf of Enever Freeman saw, spoke to and took instructions directly from the late Mr and Mrs White."
16.	I would add two comments.  First, it is not clear what “those two occasions” referred to but a later passage suggests that the deputy judge had in mind the occasion when Mr Bennett had seen Mr and Mrs White face to face on 12 May 1989.  Second, Mr and Mrs White’s wills, both executed on Enever Freeman’s offices on 29 July 1992, were in similar form.  They appointed Peter and Brian as executors.  They gave the whole net estate to the surviving spouse if she or he survived for 28 days; otherwise it was left to Peter and Brian in equal shares.  There has never been any serious issue as to the validity of the wills, although it was formally put in issue on the pleadings.  
17.	The deputy judge then referred to a number of letters “sent ostensibly on behalf of Mr and Mrs White, although in all probability written and signed by Mrs White alone, indicating that they wished Mr Bennett to take no further action in relation to the subject of the title to the property”.  The deputy judge set out in full the text of one such letter, dated 6 July 1992.  Nevertheless Mr Bennett continued to take instructions from Brian, purportedly on behalf of his parents, and continued to resist pressure for a transfer to Barry.  
18.	Mr White died on 29 August 1992.  The effect of his will was that (if the notice of severance was effective) Mrs White became entitled to a two-thirds undivided share in the property.  In or about March 1993 Brian, acting through Mr Bennett, applied to have her made a patient under the care of the Court of Protection, and a first general order was made in April or May 1993.  Peter and Brian were appointed as receivers.  In October 1993 Mrs White ceased to live at 26A Wingfield Way and went to live with Peter at 270 Long Drive, South Ruislip.  She died in hospital on 20 April 1995.
19.	In the rather unusual circumstances of this case it may be best to set out in full the last ten paragraphs of the deputy judge’s judgment (again, with slightly modified nomenclature):
"[Barry] claims that, first of all, the notice of severance of the 12th May 1989 was a breach of the agreement in relation to the disposition of the property which was entered into when the property was first purchased.  Secondly that, in any event, the purported severance and the subsequent bequests by Mr and Mrs White under their respective wills, were void on account of undue influence by [Peter and Brian] and are liable to be set aside.  
It is right to say that in the course of the evidence before me it emerged that Barry had put considerable pressure upon his parents, quite understandably in the circumstances, to put right the position which, as he saw it, had wrongly obtained as a result of the severance of the joint tenancy on the 12th May 1989.  It is also clear from the evidence given by Brian, and also from the documentation, that considerable pressure was being placed upon the late Mr and Mrs White at the instigation of Brian, and with the participation at least of Mr Bennett of Enever Freeman, to resist any suggestion by Barry that there should be an outright transfer of the property to him and, indeed, to resist Barry obtaining any further interest in the property.
It is striking that in the course of the exercise of that pressure Mr Bennett was, in large part, receiving instructions from Brian alone, and that the only occasion upon which it is discernible that he himself actually had any contact with the late Mr and Mrs White, despite the correspondence to which I have adverted, was in May 1989, when he was first instructed. 
It is also right to point out that thereafter, following on the death of the late Mr White, senior, in August 1992, Brian and Mr Bennett acted to secure a receivership from the Court of Protection in relation to the late Mrs White, who did not die until the 20th April 1995.
On the other hand, whatever one’s thoughts may be about the circumstances as they pertained in June and July 1992, when the question of the transfer of the property was, as it were, resuscitated, it does not seem to me that, on the evidence, I would be justified in finding that the Notice of Severance, which was executed on the 12th May 1989, was the result of any undue influence.  On the contrary, at that stage it seems to me that Mr Bennett was entirely right and justified in, as he saw it, securing the protection of his clients from the possession proceedings instituted by Barclays Bank by advising the execution of the Notice of Severance.  In my judgment it would be difficult to conclude that there was any undue influence brought to bear upon either of Mr and Mrs White, senior, at that stage.
In relation to the events of June and July 1992, it does seem to me that there are serious questions about the conduct of both Brian and Mr Bennett in relation to the affairs of Mr and Mrs White, senior.
On the 6th June 1992 the late Mr and Mrs White did in fact execute a transfer of their interest in the property into the sole name of Barry.  Mr Bennett persisted thereafter in resisting completion of that transfer.  Indeed, he did so vigorously in the face of a request by Cowle Smart, acting for Barry, that the transfer should be completed.
Whilst acquitting both Peter and Brian and Mr Bennett of any bad faith in this matter, it does appear to me that, in failing to take adequate instructions directly from Mr and Mrs White senior, in relation to this transfer and its completion, there was a real blindness to the duties which both owed to the parents, which resulted in attitudes being struck which were unjustified both as a matter, from Mr Bennett’s point of view, of his proper duty to his clients, and also, from Brian’s point of view, from the point of view of his moral obligations to his parents as a son.
In my view, it is proper to give effect to that transfer in such a way as to ensure that the underlying agreement which was concluded between Barry and his parents upon the acquisition of the property in October/November 1980 is vindicated.
Accordingly, I will grant a declaration that the Claimant is beneficially entitled to the freehold interest in 26A Wingfield Way."
20.	The appeal notice attacks the deputy judge’s judgment on several grounds, starting off with the criticism that he had (in Henry LJ’s vivid phrase) failed to put in place “the building blocks of the reasoned judicial process”: Heffer v Tiffin Green 17 Dec 1998, TLR 28 Dec 1998.  It is said that the judge failed to analyse the legal and factual issues in the case, and in particular that he disregarded the defence and counterclaim; that he failed to analyse both the oral evidence and the documentary evidence; and that he did not refer to the submissions made on behalf of the parties (there was a final day of closing submissions on 30 April 1999, three days after the oral evidence had been completed).  Finally it is said that the deputy judge failed to deal with Barry’s claim for mesne profits.
21.	These are serious criticisms and I must say at once that in my view they have some force.  But I also say at once that this must have been a very difficult case to try, for several reasons.  The pleadings did not achieve their purpose of defining the issues, and seem to have been largely ignored at trial.  There were serious failures in disclosure of documents on the part of the defendants’ solicitors, Enever Freeman, which resulted in the trial having to be adjourned after it started.  Two of the main witnesses (Barry and Brian) appear from the transcripts to have been truculent and argumentative, and a great deal of time was spent in cross-examination in rehearsing family grudges and grievances which had little or no direct bearing on the issues in the case.  A judge is not obliged, in a case of this sort, to adjudicate on every matter of family controversy which is raised in evidence.  Almost invariably it is better for the judge to stick closely to the real issues in the case.  Here the deputy judge was no doubt trying to do that, but it was not a case in which the real issues were easily identifiable.  
22.	That brings me back to the pleadings.  Paragraph 1 of the statement of claim pleaded an oral agreement made in or about October 1980 between Mr and Mrs White and Barry.  It set out its terms as I have already summarised them.  Paragraph 3 pleaded various steps taken pursuant to the agreement, including in subparagraph (i) the purchase in the three joint names “subject to a mortgage with [Barry] as sole guarantor”.  That is an incomprehensible pleading, but it was never amended.  Nor was the rest of paragraph 3 very informative, especially as regards how the long leasehold interest was created.  No particulars were given of the Barclays and Abbey National mortgages.  Paragraph 4 pleaded the notice of severance (and the parents’ wills) in breach of the oral agreement.  Paragraph 5 pleaded that the severance and bequests were void on account of undue influence and paragraph 6 pleaded that even if the severance was not void, Mr and Mrs White continued to hold the property in trust for Barry.
23.	There was a lengthy request for particulars of the statement of claim.  The replies provided a fairly detailed account of the conversion works carried out to the property.  They also contended that “the agreement between the parties and the reliance on those promises by [Barry] gives rise to a resulting and/or constructive trust in his favour”.  They added little to the case on undue influence.  
24.	The defence originally put in by Enever Freeman consisted of a series of denials, including the rather surprising denial that there was any agreement whatsoever between Barry and his parents, or that they had jointly bought the property for £13,750.  This was replaced in its entirety by an amended defence and counterclaim settled by counsel.  It began with some paragraphs of positive averments, pleading (in paragraph 1) the joint purchase of the property and (in paragraph 2) the express declaration of trust (creating a beneficial joint tenancy) in clause 6(a) of the transfer.  Paragraph 3 was in the following terms:
"The effect of the said clause 6(a) is to render irrelevant all and any reference in the statement of claim to extraneous intentions and/or contributions by or at the instance of [Barry] and the same fall to be struck out pursuant to RSC 0.18 r19."
The pleading then traced the devolution of the beneficial interests on the footing that the notice of severance was valid and was not induced by undue influence (an allegation which was specifically denied, and was said to be supported by no arguable, pleaded averment).  Again there was a reference to 0.18 r.19, although no striking-out application was ever made.  The oral agreement pleaded by Barry was denied, and was said in any case to have been superseded and rendered irrelevant by the declaration of trust in clause 6(a) of the transfer.  It was not admitted that Barry ever paid the sum of £40,000 stated to have been paid by him in 1986 for a long lease of no.26B.  There was a counterclaim for a declaration that the property was held as to one third for Barry and as to two-thirds for the defendants, for an order for sale, and for an inquiry and an account, especially “in reference to the consideration [evidently the £40,000] due under the lease dated 25 November 1986” and the moneys secured by the charge to Barclays Bank.
25.	The reply and defence to counterclaim admitted the declaration of trust but did not directly address the pleading that it had superseded the oral agreement and made it irrelevant.  It repeated the statement in the particulars that because of the agreement and Barry’s reliance on it, Mr and Mrs White at all times held the property subject to a resulting and/or constructive trust in his favour.  
26.	It should be noted that the oral contract relied on by Barry easily antedated the Law of Property (Miscellaneous Provisions) Act 1989, and the pleadings contain no reference to s.40 of the Law of Property Act 1925 (under which the absence of a written contract had to be pleaded) or to the equitable doctrine of part performance.
27.	From the pleadings it might have been supposed that the main issue at trial would be whether either side could go behind the express declaration of trust (creating a beneficial joint tenancy) in clause 6(a) of the transfer.  The skeleton arguments prepared for the trial (which were belatedly produced at the hearing of the appeal) both referred to the decision of this court in Goodman v Gallant [1986] Fam 106.  In the course of a full and considered judgment intended (see at p.118) to give guidance to lower courts, this court reviewed the conflicting authorities and stated the essential principle at p.117:
"In these circumstances the overwhelming preponderance of authority, including the three decisions of this court in Wilson v Wilson [1963] 1 WLR 1470, Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528 and Pink v Lawrence (1977) 36 P & CR 98, in our judgment both entitle and oblige us to hold that, in the absence of any claim for rectification or rescission, the provision in the conveyance declaring that the plaintiff and the defendant were to hold the proceeds of sale of the property “upon trust for themselves as joint tenants” concludes the question of the respective beneficial interests of the two parties in so far as that declaration of trust, on its true construction, exhaustively declares the beneficial interests."
28.	Mr Noble’s response to that, in his skeleton argument for trial, was that the declaration of trust was either incorrectly recorded or had been superseded, and that Goodman v Gallant made plain that it was open to the court to set aside or rectify the document.  The fact that there was no claim for rescission or rectification put forward in the pleadings does not seem to have worried him.  Nor does he seem to have reflected on his client’s prospects of obtaining equitable relief, twenty years on, against the estates of his deceased parents.  Mr Noble asserted that he had stated his intention to apply for leave to amend at trial if this point was persisted in, and that Mr Waters decided not to persist.  However Mr Waters did not accept, at the appeal hearing, that he had dropped the point.  This court asked for copies of any written closing submissions in order to resolve the difference, but it seems that there were no written closing submissions.  There is nothing in the deputy judge’s judgment to clarify the point; it does not even refer to the express declaration of trust.  
29.	All this is very unsatisfactory, and counsel must share some responsibility with the deputy judge for the serious shortcomings in the trial and judgment.  But it is a remedy of last resort for an appellate court to order a new trial (which is the only relief which Brian seeks in his notice of appeal).  A new trial involves a waste of time, money and resources.  Although this court’s power under CPR Order 52 r.10 to order a retrial is no longer formally conditional on “some substantial wrong or miscarriage” its general approach to the exercise of that power is likely to be the same and at least as restrictive.  The old requirement goes back to the days when many civil cases were heard with a jury (see for instance the discussion in the House of Lords in Bray v Ford [1896] AC 44).  Where trial is by judge alone an appellate tribunal will more often be in a position to conclude that deficiencies in the judgment below do not necessitate a new trial.  Heffer v Tiffin Green was a truly exceptional case in which there was, in the interests  of justice, no alternative to ordering a retrial.
30.	The area of dispute or doubt as to the real issues in the case is considerably diminished once it is realised that there was no great inconsistency between the oral agreement which Barry relied on (as pleaded in paragraph 1 of his statement of claim) and the express declaration of trust.  The latter did not refer to Barry’s undertaking responsibility for the mortgage and the costs of the conversion, but it was apt to produce the intended pattern of beneficial ownership provided that (i) Barry outlived his parents, which was in the nature of things very likely and (ii) neither parent severed the joint tenancy during his or her life.
31.	Mr and Mrs White and Barry did receive legal advice at the time from a solicitor, Mr Christopher Summers, who gave evidence at the trial.  He said in chief that he explained the matter and that the parents seemed perfectly happy and perfectly lucid about it.  In cross-examination he said:
"The agreement was, as far as I knew, remained exactly as it was under my instructions; that the three of them were joint tenants and the property would pass that way in time."
32.	Mr Noble prepared a supplementary bundle for the appeal containing selected documents which were before the deputy judge.  Documents from Mr Summers’ file show that he did advise in detail some months before the eventual purchase.  On 18 April 1980 he wrote in a letter to Barry:
"I believe that you will be making all the relevant payments in connection with the Mortgage and the upkeep of the property and are therefore anxious to ensure that your parents’ interest will pass to you on their death.  This will indeed be the case with joint tenants unless and until any one of them serve notice of severance of the joint tenancy, when the same will immediately cease and it will then fall to ascertain the precise shares of each party, who will hold the same as tenants in common."
(The reference to ascertaining the precise shares was a tenable view at that time but has since been refuted by Goodman v Gallant.)
33.	There was also discussion of the possibility of Barry dying during the five year period before the end of the restraints on alienation imposed by the right to buy scheme.  On 20 June 1980 the parents wrote to Mr Summers (in a letter drafted by Barry’s partner Ms Elizabeth Pearce but signed by both parents)
"With regard to the entering of an agreement that should anything happen to Barry within the five year period we would like you to confirm that his participation in the buying of the property will be transferred to Liz.  ...  Perhaps you would work out a term of proposal that we could all sign to that effect.
Otherwise than that we wish to proceed with all haste."
Mr Summers said in his witness statement that that proposal was abandoned when Barry and his partner separated.
34.	There was therefore contemporaneous documentary evidence supporting Barry’s case of an oral agreement under which he was, in the normal course of events, to become sole beneficial owner of the house through survivorship under a beneficial joint tenancy.  This evidence shows that the possibility of severance was raised at an early stage by Mr Summers.  But severance of the parents’ shares would have subverted the central feature of the oral agreement, that Barry was (barring his premature death) to become sole owner by survivorship.  The oral agreement as pleaded (in paragraph 1(8) of the statement of claim) required that Mr and Mrs White should not be permitted to sever the joint tenancy (see also paragraphs 4 and 6 of the statement of claim).  Whether there was such a term, and the consequences of its breach, was the first essential issue in the case.
35.	The second main issue was whether the parents’ decision in 1989 to give notice of severance was induced by undue influence on the part of Peter or Brian.  There was a third issue as to mesne profits.  For practical purposes those were the only issues.  The amended defence denied that there had ever been any oral agreement and it did not make any alternative case that Barry was in breach of the agreement, or that he should be denied equitable relief on the ‘clean hands’ principle (compare Williams v Staite [1979] Ch 291; Willis & Son v Willis [1986] 1 EGLR 62).  The counterclaim did seek an enquiry and account as to Barry’s dealings with the property, but that relief would be material only if Barry did not become sole beneficial owner after his parents’ deaths.  The transfer executed on 6 June 1992 was never an issue on the pleadings, possibly because it was seen as vulnerable to a counter-accusation of undue influence.
36.	I turn again to the deputy judge’s judgment to revisit how he dealt with these issues.  After identifying the parties and outlining the background the judge referred to discussions about how Mr and Mrs White could be assisted in the acquisition of 26A Wingfield Way.  He made a reasonably clear finding as to the outcome:
"In the event what transpired was that Barry agreed to take out a mortgage for the purchase of the property, which would necessarily be in the joint names of himself and the late Mr and Mrs White in order to qualify under the scheme which the Council had in force.  The property was therefore purchased in October 1980 by Barry, the late Mr White and the late Mrs White as joint tenants; the object being that Barry would be responsible for the conversion of the house into two separate self-contained flats, the upper one of which would be occupied by him and the ground floor one of which would be occupied by the late Mr and Mrs White rent-free for the rest of their lives, the structure thus resulting in an arrangement whereby, upon the death of the survivor of the parents, Barry would obtain full title to the property."
37.	The deputy judge did not spell out the necessary implication that neither of the parents would interfere with that arrangement by giving notice of severance during his or her lifetime.  But it was a necessary implication, as was recognised by the passage at the end of the deputy judge’s judgment referring to the transfer executed on 6 June 1992 as a vindication of the original underlying agreement.  Any point that this conclusion might be inconsistent with Goodman v Gallant must have vanished by the end of the trial since, if the point had been a live one, the judge would have had to refer to the terms of the express declaration of trust and deal with the point.
38.	The notice of severance was therefore ineffective, not because of any undue influence, but because equity would disregard a notice given in contravention of the oral agreement (an agreement which added to, rather than contradicting, the express declaration of trust).  The deputy judge rejected Barry’s case on undue influence in relation to the notice of severance, while being critical of both Brian and Mr Bennett in relation to later events (that is the events of June and July 1992).
39.	The deputy judge has also been criticised for failing to deal with the issue of mesne profits.  But he had said in the course of the hearing that that relief must follow if Barry succeeded in his claim, and we were told that an annual rate had been agreed between counsel.  However Mr Waters wished to make further submissions about the period for which mesne profits should be paid and the deputy judge adjourned that question.
40.	It is regrettable that the deputy judge did not require counsel to clarify the real issues in the case, with such amendments to the pleadings as he saw fit to permit, and that he did not himself clarify the issues in his judgment.  It is regrettable that he did not give even a brief assessment of the oral evidence of the principal witnesses (in particular Barry, Brian, Peter and Mr Bennett).  It is regrettable that he did not give a clearer summary of the conveyancing history (the successive remortgages and the long lease of 26B) which, even if not absolutely essential to the issues, makes it easier to understand the sequence of events.
41.	Nevertheless I am not persuaded that this is a case in which justice requires a retrial.  I consider that the deputy judge did reach a safe conclusion on the limited number of issues which were, on analysis, essential to the fair disposal of the case.  I would dismiss this appeal.
Lord Justice Longmore:
42.	I agree.
Lord Justice Henry:
43.	I also agree.
ORDER: Appeal dismissed with costs, not to be enforced without permission of the court. Detailed assessment of each party’s costs.
(Order does not form part of approved Judgment)