B2/2001/0838, B2/2001/0838/A
Neutral Citation Number: [2002] EWCA Civ 94
IN THE SUPREME COURT OF JUDICATURE                               
IN THE COURT OF APPEAL (CIVIL DIVISION)                                       
ON APPEAL FROM THE NEWCASTLE-UPON-TYNE COUNTY COURT
(Mr Recorder AT Lancaster)
								Royal Courts of Justice
								Strand
								London WC2

								Friday 25th January, 2002
B e f o r e:

LORD JUSTICE ALDOUS
LORD JUSTICE ROBERT WALKER

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ALAN ROBERT LUMLEY
Claimant/Respondent

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MELVIN EDWARD RIDDELL ROBINSON
Defendant/Appellant

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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THE APPELLANT appeared on his own behalf

MR C VANE (Instructed by Messrs Hay & Kilner, Newcastle-Upon-Tyne NE3 1DH) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE ALDOUS: Mrs Riddell died on 26th May 1999, leaving a will executed on 3rd June 1950. By that will she appointed Barclays Bank and Mr John Robinson as her executors. After certain legacies, she left her residuary estate to the surviving children of her brother, Mr Maurice Robinson. There were two children living, one of whom is Mr Melvin Robinson who took out a grant of letters of administration on 11th November 1999. The residuary estate consisted of about £28,000. Mr Robinson is named as the defendant in these proceedings, but in fact he is sued as the person who took out the grant of letters of administration. 
2.	Since at least 1953 until her death Mrs Riddell lived with Mr Lumley, who is the claimant. They bought their first house together at Quays Garden in West Jesmond in about 1953, and according to the judge that property was sold and another purchased with the proceeds. In 1982 they purchased West Lodge, Gosforth, Newcastle in their joint names with the assistance of a mortgage of about £9,000. Subsequently a second mortgage for about £12,000 was taken out for repairs and other expenses. It seems that those mortgages were discharged by money raised by a Home Equity Plan of the Sussex County Building Society in 1989. That mortgage subsequently became vested in the Halifax. At the date of the hearing the amount outstanding on the mortgage exceeded £100,000 and the property was worth about £170,000 or perhaps £180,000. 
3.	These proceedings were brought by Mr Lumley to obtain a contribution from the estate of Mrs Riddell under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. Mr Lumley also contended that he was entitled to a contribution from the estate for the mortgage payments that he said he had made from November 1993 to the date of Mrs Riddell's death, and also to the mortgage payments that he had made and would make from the date of her death. 
	The judgment 
4.	The case was tried by Mr Recorder Lancaster in February 2001. He gave a reserved judgment on 26th March 2001. He explained in his judgment that Mr Robinson's resistance to Mr Lumley's claim was based on a belief that Mrs Riddell had been a wealthy woman when she inherited her late husband's estate and should have remained wealthy throughout her life. He believed that the modest estate which she left was because she had spent money supporting Mr Lumley and that therefore his claim was baseless. I interpolate there that Mr Robinson does not agree that that was the submission that he made. 
5.	The judge heard Mr Lumley give his evidence and concluded that he was an honest witness. In that evidence Mr Lumley explained how he and Mrs Riddell had spent their money. As the judge held, Mr Robinson's points and submissions were drawn largely from inferences that he invited the judge to make from a thorough examination of the documents. That was because Mr Robinson and his brother had had little contact with their aunt over recent years. 
6.	The judge pointed out that he had had the advantage of hearing Mr Lumley, and as I have said he impressed him as truthful witness. He said this at page 7 of the judgment: 
“But I have had the advantage of hearing from Mr Lumley and he impressed me as a truthful witness. As one might expect with due deference to his age his recollection was not always absolutely accurate on the detail of each joint financial transaction over the last decade. But he impressed me as a truthful, kind, loyal and decent man who unselfishly made significant financial contributions to Mrs Riddell. The reality was on my findings that Mrs Riddell had high expectations of her lifestyle. I believe she found it difficult to give up the style of life that she became accustomed to following her husband's death and she spent capital to support her lifestyle. On any view of matters her income was limited and I am satisfied that she spent well in excess of that. I remind myself that in the most recent past before her death there was the BMW to run, the house to run and maintain, the clothes which she bought which I accept on Mr Lumley's evidence were likely to have been expensive and fashionable. None of that could have been maintained without a significant contribution from Mr Lumley and his persistent unselfish financial support.” 
7.	The judge then turned to the submission made on behalf of Mr Lumley that Mrs Riddell had not paid anything towards the mortgage debt for a number of years, and therefore Mr Lumley was entitled to a contribution for her half‑share which amounted to £10,700 in respect of the period November 1993 to the deceased's death. The judge held as a fact that Mr Lumley had made the payments claimed during the relevant period and was entitled to a contribution of half, namely the sum of £10,700. 
8.	It was also submitted on behalf of Mr Lumley that he was entitled to a contribution of half the mortgage payments paid after Mrs Riddell's death, in the sum of £1,900, and half the payments that would be made in the future. The judge distinguished Cunningham‑Reid v Public Trustee [1944] 1 KB 602 and concluded that that submission was correct. He therefore ordered the estate to pay £1,900, which was half of the payments made from the death of the deceased to the date of the trial, and also made a declaration that the estate remained liable to pay one half of the instalments until the mortgage was repaid. 
9.	The judge concluded that since the sums that were to be paid would be likely to diminish the estate in its entirety, it would be inappropriate that the estate should pay any money towards the claimant under the Inheritance (Provision for Family and Dependants) Act 1975. He therefore dismissed the claim under that Act. He then ordered the estate to pay the costs of Mr Lumley and also those of Mr Melvin Robinson to 30th September 2000. 
	The appeal 
10.	The issues raised on the appeal are these: 
i) Is Mr Lumley entitled to recover half the mortgage payments made in respect of West Lodge between November 1993 until 26th May 1999 which amount to £10,700? That involves a conclusion as to: 
a) whether Mrs Riddell contributed to the mortgage payments during that period, and if so how much? 
b) if the payments were made by Mr Lumley, were they payments that the parties contemplated would be subject to a requirement of repayment by Mrs Riddell? 
c) were the payments made by Mr Lumley, to satisfy the mortgage payments, voluntary payments which would not be recoverable from Mrs Riddell? 
ii) Is Mr Lumley entitled to recover half of any mortgage payments made by him in respect of West Lodge after Mrs Riddell died on 26th May 1999? 
iii) Costs. Should the estate bear all or any part of the costs of Mr Lumley? 
11.	The notice of appeal also raised the issue of the claim under the 1975 Act. But that was dismissed and there is no Respondent's Notice and Mr Vane, who appeared on behalf of Mr Lumley, did not suggest that we should come to a conclusion upon that, even if we found in favour of Mr Robinson on the other issues. 
12.	It is a basic principle of law that joint and joint and several debtors have a restitutionary right of contribution amongst themselves. Thus if a joint debtor pays more than his share of the debt he can, in normal circumstances, recover the excess from the others in equal shares. Of course it is a condition precedent to the right to recover that the claimant should have been liable to pay the whole debt and should have paid more than his share of it. 
13.	Mr Robinson on behalf of the estate did not dispute the basic proposition. He took three points. First, there was no satisfactory evidence that Mr Lumley had paid all the mortgage payments since November 1993. He is right that the evidence by Mr Lumley was not backed up by documentary evidence. In one sense that was not surprising, having regard to the relationship that existed between Mr Lumley and Mrs Riddell over many years. However, Mr Robinson submitted that where a claim was made against an estate of a deceased, uncorroborated evidence must be examined with scrupulous care. 
14.	In my view that submission is right. I need only refer to the statement of the law by Lord Denning in In re Cummins [1972] 1 Ch 62 at 68: 
“Then it was said that the evidence of the widow was not corroborated and ought to be regarded with suspicion. But I think the answer to it is sufficiently contained in the judgment of Sir James Hannen in In re Hodgson (1886) 31 Ch D 177, 183, which Mr Payne read to us: 
`it is said on behalf of the defendants that this evidence is not to be accepted by the court because there is no corroboration of it, and that in the case of a conflict of evidence between living and dead persons there must be corroboration to establish a claim advanced by a living person against the estate of a dead person. We are of opinion that there is no rule of English law laying down such a proposition. The statement of a living man is not to be disbelieved because there is no corroboration, although in the necessary absence through death of one of the parties to the transaction, it is natural that in considering the statement of the survivor we should look for corroboration in support of it; but if the evidence given by the living man brings conviction to the tribunal which has to try the question, then there is no rule of law which prevents that conviction being acted upon.'“ 
15.	Mr Robinson submitted that in this case not only was there no corroborating evidence that Mr Lumley had made all the payments since 1993, but such documentary evidence as there was pointed the other way. First, he referred us to the letter written by solicitors on behalf of Mr Lumley on 22nd June 1999. They stated: 
“As we believe you are aware, your late aunt died on 26th May. She lived for over 40 years with Mr Lumley as if she were his wife. Mr Lumley was responsible for the household with the exception that Mrs Riddell contributed £200 per month towards the loan on their home and £70 per month towards the council tax. She had her own pension from the Ministry of Defence as a war widow as well as a state pension.” 
16.	The letter went on to lay a foundation for a claim under the Inheritance Act. It concluded: 
“Clearly if he were married to the deceased, then he would have inherited the three accounts referred to but as he is not married the only way in which he can seek part of the estate of Mrs Riddell is to pursue a claim under the Inheritance Acts. We would invite both you and your brother to consider the matter and to seek independent legal advice and let us hear from you as soon as possible.” 
17.	The suggestion put forward by Mr Lumley was that that letter had been written without his instructions. However, the solicitor who wrote the letter was not called as a witness to support that evidence. 
18.	Next Mr Robinson drew to our attention the cash withdrawals that had been made. From the documents it appeared that Mr Lumley's cash withdrawals averaged about £430 per month between November 1997 and May 1999. Mrs Riddell's cash withdrawals averaged about £520 per month over the same period. Apart from the first two months, the full mortgage payment was £400 per month during this period. If Mr Lumley had paid the full amount he would only have had £30‑odd per month for any other cash expenses, which included Council Tax, electricity, gas, water, phone, food bills and the like. Mr Robinson said that was a point put in a statement that he had put before the judge and there had been no explanation given. 
19.	Third, Mr Robinson drew to our attention the withdrawals that had been made by Mrs Riddell and Mr Lumley over the period November 1993 up to her death and thereafter. There was no evidence of Mr Lumley's withdrawals prior to 28th November 1997. However, if one looks at the withdrawals made by Mrs Riddell over that period, it would seem, as a generality, that they were about (sometimes less, sometimes more), the sums of money required to pay half of the mortgage payments. 
20.	A striking figure is that for the month before Mrs Riddell died. On 27th April 1999 the mortgage payments amounted to £400 per month. Mr Lumley withdrew £200 on 27th April 1999: Mrs Riddell withdrew £260 that month. It is surprising that Mr Lumley was able to pay £400 with a withdrawal of £200 without seeking a contribution from Mrs Riddell. It also striking that the next month, when the payment was due, only £200 was paid. Of course Mrs Riddell had died and therefore no withdrawals could be made from her bank account as it would have been frozen. Mr Lumley withdrew £230 from the bank and paid only £200; whereas the amount that had been paid the previous month was £400. If he was paying the whole amount of £400, it seems surprising that he did not continue to pay that amount after her death, particularly when the amount that he withdrew was more than he had withdrawn the previous month. 
21.	Mr Vane, who appeared for Mr Lumley, had no factual answer to the inference that appears to be shown by the documents to which I have referred. He submitted that the judge saw Mr Lumley give his evidence. He held that he was a truthful witness and believed him, and the judge had that advantage which we did not have. He submitted that we should therefore uphold his conclusion of fact that Mr Lumley did pay all the payments.
22.	Clearly there is strength in that submission. However, there is nothing in the judgment that suggests that the judge had in mind the need to look for corroboration and to assess the evidence of Mr Lumley with that in mind. If he had done so, he would have realised that not only was there no corroboration, but that the documents pointed to a conclusion that Mrs Riddell had paid half of the payments that had been made. The evidence of Mr Lumley in the face of those documents and the absence of corroboration could not, in my view, have been convincing. Mr Lumley has not in my view demonstrated an income which would have made it likely that he paid all the instalments.
23.	Further, the judge failed to go on and consider whether Mr Lumley, when he made the payments that he said he did, expected Mrs Riddell to pay him back. There was no evidence upon which he could have decided this point in favour of Mr Lumley.
24.	In those circumstances, I do not believe that Mr Lumley did discharge the onus upon him that he had paid all the mortgage payments in the circumstances where it would be equitable for Mrs Riddell to pay him back.
25.	As I have said, Mr Robinson submitted that the mortgage payments that were made were made voluntarily. That being so, he submitted they were not recoverable even if they were paid, which I have held was not established. He drew to our attention the fact that the mortgage was a Home Fund Account mortgage. Under that mortgage, payments were not required until the debt reached 75& of the current property valuation. As that condition had not been reached by 10th August 2001 no payments need have been made. It followed, Mr Robinson submitted, that any payments made by Mr Lumley were voluntary payments. Such payments, Mr Robinson submitted, were not recoverable. 
26.	Mr Robinson referred us to a number of authorities to support that proposition. In the light of the conclusion I have reached, he will forgive me if I do not refer to any of them. 
27.	Mr Vane submitted that the payments that were made by Mr Lumley before Mrs Riddell died were not in truth voluntary. He reminded us of the liability of joint and several debtors, and referred us to this extract from Chitty on Contracts, paragraph 18‑027, at page 954: 
“Contribution between joint debtors. Joint and joint and several debtors have a restitutionary right of contribution amongst themselves: that is to say, if one has paid more than his share of the debt, he can recover the excess from the others in equal shares, subject to any agreement to the contrary. In the absence of agreement to the contrary each co‑debtor is liable for an equal share of the debt or obligation. This right is statutory in cases where a county court judgment against one joint debtor has been satisfied. The right of contribution is independent of any present right of the principal creditor. Thus one co‑debtor can recover contributions from another although the principal creditor's right to recover from that other debtor has become statute‑barred. Again, the right to contribution may be enforced against the personal representatives of a deceased joint debtor, even though (as we have seen) they would not be liable to the creditor. (There is an exception to this rule in the case of lessees who are joint tenants: if one dies, the survivor cannot claim contribution in respect of rent from the personal representatives of the deceased lessee.) If one joint or joint and several debtor is insolvent, the loss resulting from his insolvency is spread equally among the solvent debtors. 
It is a condition precedent to the right to recover contribution that the claimant should have been liable to pay the whole debt and should have paid more than his share of it.” 
28.	Mr Vane went on to submit, first, that the payments did reduce the debt that was owed by Mr Lumley and Mrs Riddell jointly and severally. It followed therefore that it was expended for her benefit. 
29.	Second, Mrs Riddell adopted the benefit. Her obligation to the building society was reduced with the regular payments being made by Mr Lumley. Those payments she must have known had been made for nearly six years. 
30.	Third, the fact that money had been paid before the due date did not mean that the payment was a voluntary payment. He referred us to an extract from Andrews and Millett, The Law of Guarantees, 3rd ed. at paragraph 10.16: 
“It will be seen below and in the following chapter that there are a number of equitable remedies available to the surety even before he makes payment to the creditor. However, in the absence of express agreement, he would not be entitled to accelerate his right to an indemnity by discharging the principal obligation before it is due to be fulfilled. Although there is no direct English authority for this proposition, it is stated in De Colyar's Law of Guarantee and Principal and Surety (3rd edn, 1900) at 305‑306, and the statement was approved by the Saskatchewan Court of Appeal in Drager v Allison (1958) 13 DLR (2d) 204 at 216.” 
31.	The extract goes on to set out the facts of that case and continues: 
“This decision is in keeping with the prima facie rule that the principal's request to the surety is to be construed as `pay if I do not' rather than `pay if I do not and I am liable to pay'. It remains to be seen whether the same result could be achieved if the request is plainly `pay if I am liable to pay' and payment is made before any such liability accrues and there is no question of any actual or anticipatory repudiation by the principal of his obligations to the creditor at that time.” 
32.	That extract illustrates the need to ascertain the relationship between the parties. On the assumption that Mr Lumley paid all the mortgage payments, was the arrangement “pay and I will repay you in due course” or “it is up to you if you pay”? There was no finding by the judge as to the arrangement between the parties, and it is not clear as to whether Mr Lumley was a volunteer or what arrangement there was between the parties. As I have found that Mr Lumley has not established his case that he paid all the mortgage payments, I need not decide what the relationship was. However, Mr Lumley did not establish that the arrangement between the parties was that Mrs Riddell would repay him. 
33.	I come next to the consider the payments after Mrs Riddell died. Mr Robinson, on behalf of Mrs Riddell's estate, submitted that the judge had erred when he had distinguished the Cunningham‑Reid case. He referred us to this part of the judgment of Luxmoore LJ at page 604: 
“In the present case there is no evidence of what the bargain between the plaintiff and Sir Ernest Sanger was, and, in the absence of any evidence which would establish a tenancy in common in equity between them, it seems plain that the joint tenancy which is created in law is also a joint tenancy in equity. Sir Ernest Sanger has died, and the plaintiff has succeeded, not only to the legal interest in this lease, but also to the full beneficial interest. As I have said, had the covenant stood alone and had the legal position only to be considered, and if neither of the parties had any beneficial interest in the lease, there could be no question on a covenant in this form but that whichever of them was called on to fulfill it would be entitled to contribution from the other. The substantial point in this case, however, on which I think the plaintiff is bound to fail, is that he has acquired, by reason of the death of Sir Ernest Sanger, the full beneficial interest in the lease. In those circumstances it could hardly be suggested that he, having the full benefit of the lease, could be equitably entitled to call on the executors of his co‑covenantor, whose estate has no beneficial interest in it, to pay half the rent. It seems to me that in equity the claim to contribution in these circumstances must, of necessity, fail.” 
34.	Mr Robinson submitted that it was not the law that where the property had passed upon the death of a joint tenant, the estate of the deceased joint tenant should have to continue to pay a share of the mortgage payments, particularly as the estate could not require the mortgage to be redeemed and had no interest in any equity of redemption. 
35.	Mr Vane supported the reasoning of the judge, which was set out at page 24 in these terms: 
“As I understand the judgment it referred to future payments of rent in circumstances where only the survivor enjoyed an interest in the property, ie the future occupation for which rent was to be paid. In Mr Lumley's case although it is true that he occupies the property, nonetheless he is burdened with payment of a mortgage debt which arose from a past capital sum paid to himself and Mrs Riddell. He continues to pay the interest on a debt from which the deceased prior to her death benefitted. In my judgment the situation is entirely different.” 
36.	In my view Mr Robinson is right. The law of contribution is based on the principles of equity requiring contribution by sureties. Whether a joint mortgagor can recover a contribution must depend upon principles of equity. In the present case, as in the Cunningham‑Reid case, there was a joint tenancy in equity. The full beneficial interest in the property passed to Mr Lumley upon the death of Mrs Riddell. Could Mr Lumley in those circumstances be entitled in equity to call on the estate to pay half the mortgage payments made by him after the date of her death? 
37.	There is no equitable principle entitling a person who owns the full beneficial interest in property to recover half of any payment in respect of the property, such as a rent or a mortgage payment. There was no agreement between Mr Lumley and Mrs Riddell that that would happen, and nothing would suggest that such payment would be made. The way that the judge distinguished the Cunningham‑Reid case is not appropriate. Mr Lumley has the whole beneficial interest in the property. It is not burdened by the debt which can be repaid out of the proceeds of sale of the property; the result being that Mrs Riddell's half share of the debt would be satisfied by her half share of the value of the house which had passed to Mr Lumley. 
38.	It follows, in my view, that the £1,900 was wrongly ordered to be paid by the judge and the declaration should not have been granted.
39.	I therefore would allow the appeal in full. 
40.	LORD JUSTICE ROBERT WALKER: I agree. 
ORDER: Appeal allowed; paragraphs 1, 2 and 4 of the Recorder's order set aside; no order for costs.
(Order not part of approved judgment)