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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Paull v Paull [2018] EWHC 2520 (Ch) (26 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2018/2520.html Cite as: [2018] EWHC 2520 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUST AND PROBATE LIST (Ch)

		Royal Courts of Justice Rolls Building, Fetter Lane EC4A 1NL
		26/11/2018

Master Bowles:

1. By a Claim Form, dated 31^st August 2017, the Claimant, Neville Robert John Paull, to whom I shall, without any disrespect, refer as Neville, seeks an order that a transfer, dated 17^th March 2010, be set aside. The transfer was made without consideration. The transferee was the Defendant, who is Neville's son. Again, without any disrespect, I will refer to him as Bradley. The subject matter of the transfer was the house then and now occupied by Neville, together with his domestic partner, Linda Gibson (Linda), at 7a Sefton Close. St Albans, in Hertfordshire (the property). At the time of the transfer, Neville was sixty seven years of age; Bradley was forty three.
2. The primary ground asserted for setting aside the transfer is that the transfer was executed, by Neville, under the presumed undue influence of Bradley. An alternative ground, namely that the transfer constituted, or implemented, an unconscionable bargain, was not, in the event, seriously pursued. An alternative argument, pleaded only in the Claimant's Reply, namely that the deed of transfer was void upon the basis of non est factum, was also not pursued.
3. As an alternative to setting aside the transfer, a claim in proprietary estoppel was also advanced; the gravamen of that claim being that Bradley had given an assurance to Neville that he and Linda could occupy the property for their lifetimes, that it was pursuant to that assurance that the property had been transferred and that, in consequence, an equity arose to be satisfied by, at the least, an estoppel licence to occupy the property during Neville and Linda's lifetimes.
4. Although Neville's written evidence supported the above contention, his oral evidence, which I will discuss later in this judgment, did not. In the event, therefore, his counsel, Mr Beaumont, who has acted throughout this case under Public Access and, unusually, has also had conduct of the litigation upon Neville's behalf, elected not to pursue the pleaded claim in estoppel but to advance, or seek to advance, in his closing argument, an alternative estoppel argument, said to be derived from Bradley's evidence, to the effect that Bradley had, at least implicitly, assured his father that he could remain, with Linda, at the property pending his purchase of a substitute home, that Neville had relied upon that assurance in entering into the transfer and that Bradley was, consequently, estopped from seeking, or procuring, possession of the property until such time as Neville had acquired a new home, in substitution for the property.
5. It seemed to me that that new estoppel could only be raised if and to the extent that the pleadings were amended and that a late amendment, sought in closing argument and after all the evidence had been received, should only be allowed if the matter raised by the amendment did not significantly prejudice the ability of the party against whom the amendment was raised from dealing with the matters raised by the late amendment.
6. On that footing, I refused permission to amend. It seemed to me that Mr Beaumont's new argument was not, simply, an argument in law but one which, had it been raised earlier, would, of necessity, have had to be explored, as it was not, in the evidence. There would have had to be an exploration as to the limitations, if any, upon the time within which Neville and Linda were expected to find new accommodation and, also, as to the correlation between the supposed assurance and Neville's decision, or agreement, to make the transfer.
7. It seemed to me that to allow the argument to be advanced without Bradley having the opportunity to explain the limits of any assurance he may have made, or to challenge, if he so chose, the causative nature of any assurance he may have made, as motivating the transfer in his favour, was potentially unfair. In consequence, permission to amend was refused and I do not, therefore, in this judgment, deal any further with estoppel.
8. The starting point in any case of presumed undue influence is the existence of an appropriate relationship between the party against whom the presumption of undue influence is said to arise and the party who is said to be presumed to have been unduly influenced. Essentially, the relationship in question must be, or have become, a relationship of trust and confidence. It may, also, as explained by Fancourt J in Malik v Shiekh [2018] EWHC 973 (Ch) and by Lord Nicholls, in Royal Bank of Scotland v Etridge (No2) [2002] 2 AC 773, at paragraph 11, arise where a vulnerable person acts under the domination, or control, of another. Certain relationships, usually of an overtly fiduciary nature, automatically and without more, are treated as relationships of trust and confidence. While the relationship of a parent to his, or her, child, is one such relationship, the converse relationship, that is to say the relationship of child to parent, such as in this case, does not automatically raise any presumption that the relationship is one of trust and confidence. That must be established in the evidence.
9. In this case, therefore, before any presumption of undue influence arises, there must first be established the requisite relationship, whether of trust and confidence or of vulnerability and domination, or control, as between Bradley and his father. Additionally, to crystallise the presumption, even in a case where the relationship of trust and confidence is irrebuttably to be presumed, the transaction, or transactions, called into question must be such as to call for explanation and of a character, citing the seminal judgment of Lindley LJ, in Allcard v Skinner 36 Ch D 145, 'as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act'. In those circumstances and in the absence of such an explanation or account, the presumption of undue influence arises and the evidential burden shifts, as at common law in a case of res ipsa loquitur, to the beneficiary of the disputed transaction.
10. To satisfy that burden, it is the task of the beneficiary to demonstrate that the transaction entered into was the freely made decision of the benefactor emancipated from the influence, or presumed influence, of the beneficiary. In this regard and as explained by Lloyd LJ, in Smith v Cooper [2010] EWCA Civ 722, at paragraph 61, full understanding is necessary but is by no means sufficient. The fundamental question, or concern, which has to be satisfactorily resolved in favour of the beneficiary, if the gift, or transaction, is to stand, is whether the benefactor entered into the transaction independently of and unconstrained by any actual, or presumed, influence. The fact, if it be a fact, that the benefactor intended what he did and understood what he did, is not the end of the matter. The question, as explained long ago, by Lord Eldon, in Huguenin v Baseley (1807) 14 Ves. Jr. 273, is not 'whether she (the plaintiff) knew what she was doing, had done, or proposed to do, but how the intention (to do the thing in question) was produced'. If the intention has arisen independently of the exercise of any presumed, or actual, undue influence then the transaction will stand. If, however, it is not, as it was put by Mummery LJ, in Pesticcio v Huet [2004] EWCA Civ 372, citing Hammond v Osborn [2002] EWCA 885, 'affirmatively established that the donor's trust and confidence in the donee has not been betrayed or abused' then the transaction, or gift, will fail.
11. In many cases, including this one, the primary evidence advanced, in order to satisfy the court that the presumption of undue influence has been rebutted and that the court can be affirmatively satisfied that the donor was emancipated from any such influence at the time when the gift, or transaction, was entered into, is that of the solicitor who has acted in the transaction in question.
12. As is clear from the authorities (see, in particular, Pesticcio v Huet, supra, at paragraph 23), while the presumption may be rebutted by evidence showing that the transaction was entered into only 'after the nature and effect of the transaction had been fully explained to the donor by some independent qualified person', the participation of a solicitor is not a precaution which is guaranteed to work in every case.
13. As explained, both by Mummery LJ, in Pesticcio, and Lewison J, as he then was, in Thompson v Foy [2010] P&CR 16, at paragraph 99 (x), for the advice, or involvement, of a solicitor to rebut the presumption it is necessary for the court to be satisfied that the advice, or explanation, emanating from the solicitor has been relevant and effective to free the donor from the impairment of the influence upon his free will and to give him the necessary independence of judgment. Proof of outside advice does not, necessarily and of itself, show that the subsequent completion of the relevant transaction was free from the exercise of undue influence. Whether it will be proper to infer, or conclude, that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a matter of fact to be decided having regard to all the evidence.
14. Put shortly, whether the intervention of a solicitor, or the advice given by a solicitor, is sufficient to rebut the presumption is dependent not upon some formulaic, or mechanistic approach, whereby certain advice given in certain circumstances inevitably, or automatically, rebuts the presumption. The question, rather, is whether, in the particular circumstances of the case, the court can be affirmatively satisfied that the consequence of the advice given has been to procure the emancipation of the donor, or benefactor, from the influence exercised by the done, or beneficiary. While, it is, I think, clear that advice, even from an independent source, which does not make clear the nature and consequences of the transaction in question, will not rebut the presumption. It is, by no means, necessarily the case that such advice, if given, will, in all circumstances, have the requisite emancipating effect.
15. In light of the foregoing, the first question for determination is whether there was, as at the date of the transfer of the property, either a relationship of trust and confidence subsisting between Neville and Bradley, or a relationship whereby Bradley had an ascendancy over Neville, such as to render Neville vulnerable to Bradley's influence.
16. In making that determination, the court will usually look to the historic relationship between the two relevant parties. The court can, however, infer an appropriate relationship of trust and confidence from the circumstances pertaining to the transaction itself (see Turkey v Awadh [2005] EWCA Civ 382 at paragraph 10). It seems to me, further, that where, or if, it is demonstrated that following a transfer, or transaction, there is evidence of a relationship of trust and confidence, it is, unless there is other conflicting evidence, a perfectly proper and permissible inference that that state of affairs also existed at the date of the transaction in question.
17. Although, in Etridge, Lord Nicholls described the paradigm case where a relationship of trust and confidence may arise as being one where the donor, or benefactor, reposed trust and confidence in the beneficiary in respect of financial affairs, I agree with Lewison J, in Thompson v Foy, that, consistently with the seminal judgment of Lindley LJ in Allcard v Skinner, that description was not intended to be exhaustive. In consequence, other relationships, where a requisite degree of trust and confidence is reposed in the donee of a particular gift, will, when accompanied by a gift, or other transaction, calling for explanation, found a case in presumed undue influence.
18. In this case, Mr Paton, for Bradley, submitted that the relationship between Bradley and Neville, as at the date of the transfer, was no more than the usual relationship of a loving son to his father and that there was nothing in their relationship such as to enable the court to conclude that there was, as between son and father, such a relationship of trust and confidence as to engage the doctrine of presumed undue influence. Mr Beaumont, for Neville, submitted that his was a case where, at the relevant time, there was, both, a relationship of trust and confidence between father and son, with Neville reposing trust and confidence in his son, and a relationship whereby Neville was vulnerable to the domination, or control, of his son.
19. I have no doubt at all, having seen Neville, at length, in the witness box, that he is, today, a very vulnerable person and one, who, if he now had to enter into any serious transaction, would, potentially, be deeply susceptible to the influence of others. The gentleman who gave evidence before me was very frail. He had hearing difficulties, assisted, so he told me, by only recently acquired hearing aids. He was unable to sit to give his evidence. He chose to wear a high visibility jacket and presented with a long unkempt beard. He had evident difficulty in focussing on many of the questions asked. His answers were very often vague and ill directed to the questions put. He had obvious and admitted difficulties of recollection. He was often emotional, particularly when mention was made of his domestic partner, Linda, herself suffering from severe hearing and speaking difficulties. He was, throughout his evidence, extremely anxious, well beyond the level of everyday anxiety commensurate with giving evidence in the High Court. He required, throughout his evidence, the support of representatives of the Personal Support Unit, who sat next to him adjacent to the witness box and for whose assistance the court is extremely grateful. For all of that, I am satisfied that he tried to tell me the truth.
20. The difficulty, or challenge, in respect of his evidence and the impression he gave in respect of his evidence, was to discern, or determine, given his current apparent vulnerability, what his emotional, physical and mental state would have been in the winter and spring of 2010, when the transfer of the property was entered into. The problem was compounded, in respect of the weight that I was able to give to his evidence, by two things. Firstly, it was clear from medical notes, emanating from 2016, that, at that date, Neville had no proper recollection of the transfer of the property and of the circumstances of that transfer. Secondly, it was clear and, not in any dispute, that Neville is, currently, being assisted in this litigation by one of his other children, his daughter Luisa. Luisa gave evidence and it is manifest that she is very hostile to Bradley, who she describes as a very controlling person, and is of the firm belief that Bradley took advantage of her father to secure the transfer of the property. Given Neville's current very fragile state, the court must, as it seems to me, be very careful indeed to ensure that what Neville ostensibly says about the matter reflects his own recollection and not a version of that recollection that he has adopted from his daughter.
21. That Neville's evidence must be treated with very great care and that, in many respects, it cannot be relied on is best demonstrated by the conflicting evidence given, on the one hand, by Neville, and on the other by the solicitor, Mr Nicholas Buckley (Mr Buckley), who acted in the transfer and who gave lengthy and detailed evidence before me. I will turn, in more detail, to that evidence later in this judgment.
22. The gravamen of Neville's evidence, as to the two interviews, or meetings, that took place with Mr Buckley, on 17^th and 18^th March 2010, is that, at those interviews, all conversation and discussion passed through Bradley, that, at every stage, Neville looked to Bradley for approval and that he was, in effect and obviously, acting as Bradley's cipher and willing to do whatever Bradley wanted. Mr Buckley's evidence, which, in this respect, I entirely accept, is that the meetings were not conducted in that way at all, that there was no question of his conversations with Neville being conducted via Bradley, or of Neville looking to Bradley for his responses. Mr Buckley was clear that, while he had been told that Neville was hard of hearing, prior to the two meetings, he was, in fact, perfectly able to have and did have direct conversation with Neville, in which conversation Neville took a full and independent part.
23. While I have no doubt that Neville now believes that matters were conducted in the way he now contends and while I have no doubt that he now believes, perhaps, or probably, as a result of the current influence of his daughter, that his relationship with Bradley, in 2010, was one whereby Bradley exercised something approximating to complete control, I am quite satisfied that the situation was not as simple and as simplistic as is portrayed by Neville's evidence.
24. That is not to say, however, that there was no relationship of trust and confidence as between father and son, in 2010, or that Neville was not, even in 2010, a person susceptible of being influenced by Bradley, or others.
25. Mr Paton submitted that Neville's current vulnerable state provided no reliable indication of his mental, or emotional state, or of any vulnerability, as at the date of the transfer of the property. He put in video evidence of Neville, playing with his grandson, Bradley's son, at, or near, the date of the transfer, as evidence that, at the date of the transfer, Neville was a normal sixty seven year old man, with no cognitive, or emotional, difficulties. The video is of Neville singing, talking and performing to his grandson.
26. Despite that evidence, which, I think, Mr Beaumont rightly characterised as showing a somewhat childlike person, I am not persuaded that Neville's current state and current frailty and evident vulnerability has arisen in its entirety since 2010. It does not seem to me to be at all likely that the foundations of his current extreme fragility did not exist at, or prior, to 2010. The much greater likelihood, as I see it, is that, while not so pronounced, the seeds of Neville's current frailty were, by 2010, already in place.
27. In this regard, it is, I think, noteworthy, that the 2016 medical notes, that record Neville's failure of recollection, also record that he is a person who has suffered long standing anxiety and depression, preceding, by many years, the 2010 transfer. It is also the case, not in any dispute, that, over his lifetime, Neville has changed his name by deed poll on a number of occasions, including at the time of the 2010 transfer, and the consensus of the evidence is that the underlying reason for, at least some of, the earlier changes was an extreme concern and anxiety that, following his divorce in 1988, his ex-wife would 'come after him' for money. It is, again, not in any dispute that, following that divorce, Neville, in effect, lived in his car for some two years. Other illustrations from the evidence and from Neville's medical notes can be given of what may be termed Neville's eccentricity; eating habits, driving habits, an unwillingness to engage with electronic devices, or electronic financial arrangements, such as bank cards, an unwillingness, confirmed in evidence by Bradley, to tidy, or maintain his home.
28. While eccentricity is not, by any means, an universal badge of vulnerability, it is, I think, clear from the evidence that, eccentric, or not, Neville has had, for many years and extending long before 2010, an over-anxious and fragile personality, such as, as it seems to me, to render him likely to repose trust in those to whom he looked for support.
29. The next question, therefore, is whether, in 2010, Bradley was such a person. My conclusion is that he was.
30. Mr Paton's submission was that, on the evidence, the only matter in which Neville could be shown to have reposed confidence in Bradley, prior to the 2010 transfer, was in respect of the arrangements made, as between father and son, in relation to Neville's motoring insurance, in respect of which it was accepted that, at least latterly, Bradley had held and been responsible for what Neville called his driving documents.
31. Mr Paton further submitted that, even in respect of those documents, there was nothing to evidence that the holding, by Bradley, of the relevant insurance documents and the organisation, by Bradley, of his father's, as well as his own, insurance reflected any particular relationship of trust and confidence, as between the two of them, or that Bradley's conduct in this regard betokened that his father had reposed in him a requisite degree of trust and confidence to bring into play the potentiality for the application of principles of presumed undue influence. He drew attention to Bradley's evidence that he and his father had, over the years, shared a form of joint commercial insurance, allowing them to drive multiple vehicles, by way of delivery, that, initially, his father had taken responsibility for insuring both of them, but that, as his father had got older, the responsibility had been assumed by him.
32. I would agree that if this was the only material upon which the court was asked to found a finding of a relationship of trust and confidence, then the insurance material would have been insufficient for that purpose. I do not consider, however, that that was, or is, the only available material.
33. In this regard, I put out of my mind Neville's evidence that, before 2010, he had delegated control of the bulk of his 'stuff', meaning his personal financial and other documents, to Bradley. There is no documentary support for that contention and, absent such support, I was not satisfied that Neville was not conflating that which took place before 2010 with that which took place after and following that date.
34. What is clear from the documents before me and from the evidence, including Bradley's evidence, is that, following the 2010 transfer, Neville did delegate significant control over his formal documentation to Bradley, in that Bradley's then address in Swindon became the 'registered' address for such matters as Neville's pension and, also, the receipt of bank statements. Although, Bradley's evidence was that Neville retained control of his own finances, it is not in doubt but that, at least when requested, Bradley was authorised by his father to open banking and pension documentation.
35. It seems to me that that material does demonstrate a not insignificant degree of trust and confidence reposed in the son by the father. To place one's official documentation, including documentation relating, as the evidence shows, to valuable bank accounts and valuable pension rights into the hands of another, is, as it seems to me, a powerful indicator that trust and confidence is reposed in that other, particularly, where authority is given to open and peruse such correspondence.
36. The fact, that this evidence post-dates the transfer, does not, as it seems to me, diminish its value in making the necessary assessment of the son/father relationship at the date of the transfer. There is nothing at all in the evidence to suggest that the relationship changed, or was enhanced, after the transfer. The implication, or inference, must be that, at least to the extent demonstrated by the post-transfer behaviour, that degree of trust and confidence already existed at the date of the transfer.
37. It further seems to me, on the evidence, that there is, in this case, a clear connection between the transfer of the property in 2010 and Neville's decision, post-transfer, to use Bradley's address in Swindon as, as it were, his 'official' address.
38. Both in his written and his oral evidence, Neville maintained that the idea of the transfer had emanated from Bradley, on the footing that Bradley would 'look after' the house. While, as I have already indicated, I acknowledge and accept the necessity of treating Neville's evidence with great care, I found this aspect of his evidence to have a plain ring of truth and to be consistent with and, hence, derive support from Neville's post-transfer conduct in relation to his documents. Although Neville's motivation is obscure, it does seem to me that the transfer of the house, coupled with his evident decision to disassociate his documents from the address at which he lived, was all of a piece with an intention to distance himself publicly from the property in which he lived.
39. If that be right and if, therefore, as I find, the likelihood is that the transfer was a reflection of that intention, then, it becomes abundantly clear that, in effecting the transfer of the property to Bradley so that Bradley could 'look after' it, he was investing complete trust and confidence in Bradley, who, equipped, now, with the paper title, was given complete control as to his father and Linda's occupation of their own home.
40. I recognise, of course, that the foregoing conclusion necessarily involves the rejection of important parts of Bradley's evidence.
41. Bradley, in his witness statement, but at no earlier stage, asserted that his father had put up a number of reasons for the transfer; that he wanted to ensure that no part of his property went to Linda's children by an earlier relationship, that he wanted, should the occasion arise, to avoid the property being sold by the local authority to pay care home fees, that he wanted to avoid the payment of Inheritance Tax upon his death.
42. Putting aside the question as to the effectiveness of the transfer in achieving those ends, it is striking and surprising that, if, indeed, that was, or had been, Neville's reasoning, or intention, in making the transfer and if, as Bradley maintained, his father had made this known to him, none of those matters feature, at all, in Bradley's lengthy Defence and Amended Defence to the Claim. In particular, paragraph 11 of the Defence and of the Amended Defence, which purports to set out the reasons given by Neville for making the transfer, raises, or refers, to none of the matters that Bradley now says that he recalls his father making known to him.
43. Mr Paton sought to explain this on the footing that the matters now raised had been recalled by Bradley, when preparing his witness statement, as part of the detailed process of attempted recollection which goes into the making of such a statement. In general terms, I accept that the focus involved in the preparation for a trial may often result in the recollection of fresh detail. In this case, however, the matters in question are not peripheral and the kind of things which might be recalled to mind in the process of preparing evidence but are at the very heart of the case. The Defence and the Amended Defence focus, at paragraph 11, in terms, upon the reasons said to explain, or underwrite, the transfer. It is inevitable, therefore, that Bradley will have been asked to focus upon those reasons when his defence was being drawn and, with respect, inconceivable that, if the matters now raised had, indeed, been the reasons expressed by Neville for making the transfer, that none of them would have come to Bradley's mind.
44. By the same token, if, indeed, the reasons now advanced were Neville's reasons, it is, again, striking and surprising that none of those matters are reflected either in the attendance notes that were prepared by Mr Buckley at the two meetings which took place on 17^th and 18^th March 2010, following which the transfer was executed, or in Mr Buckley's recollection of those meetings. This is, or would have been, as I see it, the more surprising given that, at the 18^th March meeting, Neville was, according to Mr Buckley, in evidence that I accept, taken through a standard form document created by Mr Buckley's firm, Pooleys, which sought to explain some of the disadvantages and difficulties which might be occasioned in the situation where a parent sought to make a gift of property to avoid care home fees, or Inheritance Tax. It seems unlikely to me that, if those matters had been in Neville's mind as constituting his independent reasons for making the transfer, then they would not have emerged at that point. Instead of which, the only reason ostensibly proffered by Neville for making the transfer was his alleged, then, view that Bradley's sisters were a little too extravagant
45. My clear conclusion, arising from the foregoing, is that the reasons that Bradley now says were advanced in 2010, by his father, for making the transfer were not advanced by Neville at that time and were not Neville's reasons for effecting the transfer.
46. I am fortified in that conclusion by a number of additional matters.
47. Firstly, I do not think it at all likely that Neville, even in 2010, would have thought in the way that Bradley now alleges. For the reasons that I have already given, I have to be very careful in evaluating Neville's state of mind in 2010 upon the basis of the evidence he gave before me. That said, however, I formed the very clear view that at no stage in the last many years has Neville lived his life and made his plans in the orderly and coherent way which would have been indicated if his reasoning was that which Bradley has suggested. He told me and I accept that when he purchased the St Albans property, at auction, it had been purchased without advice and that he had just 'plunged in'. That, I think, is the way that Neville goes about things.
48. Secondly, even had Neville thought in the way that Bradley has suggested, those reasons do not seem to me to explain the timing, in particular, of the transfer. Neville was not married to Linda (and still is not) and, in consequence, there was no reason in 2010, or now, to think that the retention of the property would benefit her children. As to the other two reasons, avoidance of Inheritance Tax and a forced sale to pay care fees, Neville was only sixty seven. He was in good physical health. There was no reason at all, at that stage, to make a transfer.
49. In this regard, Bradley's case is that his father wanted to move away from St Albans and purchase a property for himself and Linda, using Neville's capital, other than the capital represented by the St Albans property, either at Selsey, in West Sussex, where Bradley had a caravan, or elsewhere. According to Bradley, the arrangement that he made with his father was that, pending that purchase, Neville and Linda could remain in the St Albans property. It was this alleged promise that Mr Beaumont sought to use to found his alternative proprietary estoppel argument, discussed in paragraphs 4 to 7 of this judgment.
50. That alleged arrangement provides the only nexus between the transfer of the property to Bradley and Neville's apparent wish to move from St Albans. There was, on Bradley's case, no need whatever to transfer, or sell, the property in order for Neville and Linda to move away. The value of the property was not to be used in the purchase and no other reason is suggested as to why there was any need, or necessity, to transfer the property to Bradley in order for Neville, if he so wished, to move from St Albans.
51. As with his evidence as to the reasons purportedly put forward by Neville to Bradley as motivating the transfer, I am unable to accept Bradley's evidence as to this supposed arrangement. While there is undoubtedly evidence that, post the transfer, Neville was considering moving, there is no evidence, other than Bradley's that that wish, or intention, was bound up in any way with a gift of the property to Bradley, or with some supposed arrangement allowing Neville continued, albeit temporary, occupation of the property post transfer. Given that I am satisfied that Bradley has lied to me about the reasons given by Neville for the transfer and given the lack of any other good reason to transfer the property to Bradley even had it been Neville's intention to move, I am, I am afraid, unable to accept that this was the arrangement made. It seems to me much more likely that, at least from Neville's perspective, the transfer was intended to be nominal only and not to affect the way that he lived his life, or to limit his continued entitlement to make his home, if he so chose, in St Albans.
52. My inability to accept Bradley's evidence in respect of the foregoing matters, reflects, I regret to say, the overall impression that I formed of his evidence. Mr Paton submitted that he stood up well to what was, undoubtedly, a sustained and hostile cross examination by Mr Beaumont. I do not share Mr Paton's view. Over and above a number of particular matters which I will refer to below, I was unimpressed by Bradley's general demeanour. I felt that he fluctuated from the glib, in certain of his answers, to the calculating; prevaricating in certain of his answers in order to see where the question was leading and seeking to water down areas of his evidence which, as he perceived it, might have assisted his father's case.
53. At a more particular level, I found it of concern that, in what might be termed the run up to this trial, Bradley appears to have taken steps to persuade an estate agent, in Selsey, in West Sussex, to record a request for a viewing of a property in Selsey, in 2013, as emanating from Neville rather than, as recorded by the agent, Bradley.
54. As already explained, Bradley has contended that the transfer was linked to Neville's desire to move. I have rejected this. It is, however, in that context and, presumably, to give weight to this aspect of his case that, as it seems to me, Bradley has chosen to seek to persuade the agent in question to modify her records. The concerning feature of this is not the change, in itself, which was sought to be made, that being at the far periphery of the matters material to this Claim, but the fact that Bradley was prepared, in respect of such a peripheral matter, to seek to change the record. It is very hard to trust the evidence of a litigant who chooses to behave in this way.
55. There are two other factors, internal to the evidence, in this case, which contribute to my lack of trust in Bradley's evidence. The first is that Bradley was, as it seems to me, at the least, a participant in a lie which was told to the solicitor, Mr Buckley as to the occupation, or lack of occupation, of the property as at the date of the transfer. The second is that, following the transfer, Bradley elected to lie, over quite a considerable period of time, to Mr Buckley as to his occupation of the property.
56. As to the first matter, it is clear from Mr Buckley's evidence, which I accept, that the discussions that he had with Neville, as to the transfer of the property, were premised upon the belief that the property was not occupied and that Neville was living with Bradley at Bradley's address in Swindon. The importance of this incorrect premise will be considered later in this judgment. The source of the false premise is to be found in two documents, signed by Neville, in the name of Robert Harrison (which he was then using and in which name the property was registered), but which, on the evidence, were not filled in by Neville. The first document, dated 3^rd March 2010, is a transfer of Equity Questionnaire. It asks the question, who occupies the property and expressly requires the names of all occupants, including the putative transferor. A line has been placed against this question, signifying, as I read it (and as Mr Buckley read it) that the property was empty. That state of affairs was, as I see it, confirmed, by the second document, an Initial Instructions Form, also signed by Neville, in the name of Robert Harrison, and which gave his address as being Bradley's then address in Swindon.
57. Neville was cross examined about these documents. He was clear that the signatures were his but the writings were not. That evidence was not challenged by Bradley and the clear and obvious inference, there being no other participants in this matter, is that the forms, including the address on the Initial Instructions Form, were filled in by Bradley, who, consequently, must have known that a false picture was being given to the solicitor instructed to implement the transfer.
58. As to the second matter, the evidence from Mr Buckley was that, in his post transfer dealings with Bradley, which concerned the registration of title to the property and the acquisition of title to an area of land, which had not been embraced by the original conveyance of the property to Neville, he had been told by Bradley that he, Bradley, was living at the property. That was simply not true. That lie was compounded by a further lie, in explanation of the fact that Pooleys were asked to communicate with Bradley at the Swindon address; namely that this was a convenient address for Bradley because of his work. Bradley was not working.
59. In the result, I regard Bradley as an untrustworthy and unreliable witness. I do not accept that the reasons said by Bradley to have been advanced by Neville in explanation of the transfer were ever so advanced, or that they reflected Neville's thinking at the time of the transfer. Nor do I accept that the arrangement as between Bradley and Neville post transfer was simply that Neville could stay at what was now Bradley's house pending his acquisition of another property.
60. The true position, as I find, was that the transfer was seen by Neville as no more than nominal, as one which did not affect his continued occupancy of the property as his home and, consequentially, given the transfer of the paper title to Bradley, reflected a situation in which, as set out in paragraph 39 of this judgment, Neville reposed complete trust in Bradley not to take advantage of his paper title.
61. I add two further matters in respect of trust and confidence.
62. Firstly, it is not in doubt but that when Pooleys were first instructed, their instruction was not confined to the transfer but also related to the execution of a change of name deed. The need for such a deed, or deeds, is reflected in a manuscript document, antedating the transfer and created by Bradley, apparently following a visit to the Citizens Advice Bureau. It provided, or seeks to provide Neville with a form of route map whereby he could resolve any problems created by his use of a number of names and take him to a situation whereby he could, in the scenario contemplated acquire a house and marry Linda.
63. There is no suggestion that this scenario, in its terms, was ever implemented. Its importance, however, for present purposes, is that it demonstrates and confirms that there was, prior to the 2010 transfer, a close and confidential relationship between Bradley and his father, such that Bradley was securing and passing on advice to his father as to the best way of reconciling his affairs.
64. Secondly, even were the facts as alleged by Bradley, those facts, in themselves, portray a situation whereby Neville was reposing a very serious trust in Bradley. Had the arrangement been that for which Bradley contends, namely one whereby, notwithstanding the change of ownership, he was prepared to allow his father and Linda to remain in the property, pending their acquisition of another home, that, in itself, betokens and is indicative of the high degree of trust that Neville was prepared to repose in Bradley. Acting in that way and without any safeguards as to their occupation, Neville and Linda would have been (subject to the possible intervention of equity) entirely at the mercy of any change of heart by Bradley as owner of the unencumbered legal and beneficial title.
65. Taking all the foregoing matters together, my clear conclusion, is that, at the date of the transfer, the relationship between Bradley and his father was a relationship whereby Neville was prepared to repose complete trust in his son.
66. That conclusion derives both from the transaction itself, whether as explained by Bradley, or, as perceived and understood by Neville, and from the other surrounding circumstances discussed in this judgment as evidencing the trust and confidence which existed as between the father and his son at the material date.
67. I am satisfied that had it not been for the existence of a relationship of trust and confidence as between Neville and his son in 2010, Neville would not have placed his occupation of his long standing home under the control of his son, whether, in the long term, as I find was Neville's perception and intention, or in the indeterminate short term, as alleged by Bradley. I am further satisfied, as already stated, that the existence of that relationship at that date is further supported by the other indicia that I have discussed.
68. The next question, therefore, which, in light of the foregoing, I can deal with relatively shortly, is whether, viewed objectively, the 2010 transfer was a transaction calling for explanation and, if so, whether, paraphrasing Allcard v Skinner, it can be reasonably explained, or accounted for, on any of the grounds, or motives, upon which ordinary people act.
69. The answer to that question, in my view, is that, objectively considered, this transaction undoubtedly called for explanation and, further, that no explanation has been forthcoming, which affords a reasonable explanation for the transaction.
70. In regard to the transfer itself, Neville's position in 2010 was that he was sixty seven, not working and not in receipt of pension, or other benefits. He had lived in the property since its purchase in 1993. The property was owned without mortgage. He had, as he told me, other assets, acquired from a variety of family sources, of about £280,000. Although not explored in evidence, I assume that Linda may have been in receipt of state benefits. The value of the property was, according to a retrospective valuation carried out on behalf of both parties, some £375,000. It represented, therefore, not merely Neville and Linda's home but also somewhat more than one half of Neville's assets.
71. The 2010 transfer has radically changed that position. Without the property and without any established right to live at the property, Neville, instead of having a secure home and savings upon which to live, has been left with no secure home, less than half his prior assets and a need to use those residual assets both to secure his housing and to pay his living costs and expenses.
72. Looked at objectively, it seems manifestly and obviously clear that a transaction having these effects cries out for explanation and, further, that such a transaction is not reasonably explainable by reference to the ordinary conduct of life.
73. It is not merely that this is a case where an elderly man has stripped himself of the largest part of his assets. It is also a case where the asset disposed of was the home in which he was living and where the disposal of that asset put his home and his continued entitlement to live in his home with his disabled partner at risk. It is also a case where the effect of the disposal was to leave Neville in the situation where the funds which he had had to live on would, in the event that he lost his home, have to be used for rehousing, in reduction, therefore, of the funds available for his and Linda's living expenses.
74. The circumstances of the transaction also call for explanation. It is clear from the attendance note prepared by Mr Buckley in respect of his meeting with Neville and Bradley on 17^th March that no effort had been made to value the property, such as to give Neville any idea of the amount of his capital that he was giving away. It is also clear that the value figure, which appears, in the application to register the transfer, placed a value on the property of £170,000, somewhat less than one half of its apparent true value. A transaction entered into with such casualness and inaccuracy itself requires to be explained.
75. There is no reasonable explanation. I have already discussed the reasons that Bradley says were advanced by his father in explaining his wish to transfer the property and I have already concluded that those were not Neville's reasons and that Bradley's evidence on this point is untrue. They would not, in any event, have afforded a reasonable explanation for such a damaging transaction.
76. This is not the case of a wealthy man disposing of surplus assets, in old age, to procure fiscal, or other, benefits. This is the case of an elderly man giving away the home in which he lived and which, objectively, reflected over half his assets, at a time when he was without income, other than any income derived from his other assets and where those other assets, far from being surplus, were the assets upon which Neville relied to live.
77. The transfer would not have afforded any protection in respect of liability for local authority care fees. Not merely would a transaction entered into for such a purpose be one that a local authority could disregard, but also the residual capital with which Neville was left well exceeded the amount that is protected from liability for such fees. Neville would have lost his home and kept his potential liabilities.
78. In regard to Inheritance Tax, any potential saving would have been contingent upon Neville living seven years and would, in any event, have been wholly ineffective if, as he has, Neville continued to occupy the property. More materially, the possible contingent benefit, in tax terms, which might have accrued to Bradley, could not, possibly, be said to justify, or constitute good reason for, a transaction so obviously adverse to Neville.
79. In regard to both Inheritance Tax and local authority fees, there was, in any event and as already stated, no sensible reason for implementing a transfer in 2010. Although elderly, Neville was not old. He was in good physical health. Not merely were the circumstances quite unsuitable for transferring away his home, but the timing was also completely wrong.
80. In regard to the suggestion that a function of the transfer was to preclude Linda's children from inheriting, or securing, the property, two obvious points arise. Firstly and as already stated, that prospect, if it can be so called, could only arise if Neville and Linda were married, which they were not and are not. Secondly, there are a variety of methods, whether testamentary, or by way of trust, whereby the property could, if need be, have been prevented from falling into the hands of Linda's children. The suggestion, that an appropriate way of dealing with that concern, if, in truth, it ever were a concern, was to transfer the property away from Neville, verges on absurdity.
81. In the result, I am satisfied that, in this case, the transfer called for explanation, that no reasonable explanation, based upon ordinary motives, or behaviour, is available and that, in consequence and in the context of the relationship of trust and confidence that I have found existed between Neville and his son, the presumption of undue influence is made good.
82. The consequence of that finding, as earlier set out, is that the evidential burden shifts to Bradley to satisfy the court upon all the evidence that the presumption of undue influence is rebutted and that the court can be assured that the decision to transfer the property to Bradley was Neville's own full and free decision, emancipated from the presumed undue influence exercised by Bradley.
83. Central to the resolution of this issue is the evidence given by the solicitor, Mr Buckley, of Pooleys, who was instructed in the transaction.
84. I say straight away that I found Mr Buckley to be an impressive, reliable and responsible witness. He gave his evidence calmly and impartially. He was prepared to acknowledge that mistakes might have been made in dealing with the transaction and that, for example, the materials that his firm had produced, in an effort to discourage what might be ill-advised gifts of property, could have been clearer.
85. Mr Buckley's recollection of what was, in his terms, a modest transaction many years ago was, rightly, put to the test by Mr Beaumont. Mr Buckley is a senior conveyancing solicitor who undertakes very many conveyancing transactions. He acknowledged that between 2010 and the date of this trial he could well have been involved in something in the order of a thousand transactions.
86. How then, rhetorically, could this modest transaction carrying a modest fee of some £250 linger in his memory? Surely, as it was, fairly, put by Mr Beaumont, his recollection could not, in truth, go beyond the contents of the two attendance notes that Mr Buckley had made in respect of the meetings, between Neville, Bradley and himself, which had taken place on 17^th and 18^th March 2010 and which had resulted in Neville executing the transfer, back dated, apparently, to the 17^th March, following the 18^th March meeting.
87. The answer to these legitimate questions lies, I think, in two things. Firstly, it is the experience of the court that, even at a distance in time, the effect of re-reading papers relevant to a transaction, or a situation, is to bring that transaction, or situation, into a degree of focus and to restore, at least to an extent, a recollection previously lacking. Secondly, the facts of this case, as already touched upon, are rather different to many of its kind.
88. In many cases, the transaction, which, many years after the event, is called into question, is a one off transaction. The parties have visited the solicitor on the one occasion. The transaction has concluded. There have been no sequellae and there will have been nothing to retain the matter in the solicitor's mind until such time as, many years on, he, or she, is called upon to recall.
89. This case is different. In this case, issues arose as to the registration of Bradley's title and as to the extent of the property owned by Neville and as to his title to that property. The consequence was that Mr Buckley continued to have dealings with Bradley (and, to an extent, Neville) after the transfer had been executed and right up until 2014, with the result that, when the current issue surfaced, Mr Buckley was not called upon to bring back to his mind a transaction to which he had had to give no thought for many years. As a result, in particular, of the necessity to make a possessory title to a bank of land occupied with the property, but not conveyed to Neville with the property, Mr Buckley had had to advise and act for Bradley in respect of the making of that title and, to that end, and with the active assistance of Neville, as well as Bradley to prepare statutory declarations as to the use and occupation of the additional bank of land. It was in that context that, as it emerged at trial, Mr Buckley was misinformed by Bradley that he, Bradley, was living at the property when, in point of fact, he was not.
90. Before reverting, in somewhat more detail, to the evidence as to what took place at the two interviews on 17^th and 18^th March, there is one further factor, arising from those interviews, that, I suspect, has caused this matter to remain, more than many such matters, in Mr Buckley's mind, namely that, as discussed later in this judgment, there was, in his mind, a degree of unease as to the transaction that he was asked to implement and a recognition that this was the kind of transfer that might come under attack. That being the case and given, also, the other two factors discussed above, I do not find it surprising that Mr Buckley has retained a serious and helpful recollection of the two interviews.
91. Coming to the two interviews, I have already set out, at paragraph 22 of this judgment, that I am satisfied that the interviews took place in the manner set out by Mr Buckley, namely that, although he had been warned that Neville was hard of hearing, he was, in fact, perfectly able to conduct a discussion with Neville as to the transfer and did not operate, as Neville suggested in evidence, through the medium of Bradley. Bradley was, however, present at both interviews, save, as discussed later in this judgment, at a point, on 18^th March 2010, when Mr Buckley was able to speak privately to Neville, in the absence of his son.
92. I am further satisfied that Mr Buckley's two attendance notes, of 17^th and 18^th March 2010 give, so far as they go, an accurate account of those interviews.
93. Accordingly, I am satisfied that, as set out in the 17^th March attendance note, Neville played an active part in a discussion which took place as to the title plan and the garage serving the property and, likewise, that, following that discussion, Neville and Mr Buckley were able, as Mr Buckley put it in his evidence, to engage constructively as to the transfer.
94. As to the transfer, itself, the attendance note records that Mr Buckley was informed by Neville that he wanted to transfer what Mr Buckley called his 'main asset' to Bradley and that he, Neville, was not under any pressure to make that transfer. Mr Buckley's further recollection, reflecting, as he told me, his attitude to the transfer throughout, was that he advised Neville not to make the transfer.
95. As earlier set out, other than his statement that his daughters were a little too extravagant, he gave no substantive reason for wishing to effect the transfer. Mr Buckley further recorded that Bradley, who was, of course, present throughout these exchanges, indicated, during this discussion, that he would leave the room, but Neville did not want this. It would appear, from the attendance note, that it was at this point that Mr Buckley informed Neville that he could, if he so wished, obtain what Mr Buckley noted as 'independent legal advice'.
96. There was, inevitably, much discussion, as between Mr Beaumont and Mr Buckley, as to what Mr Buckley meant by this. Mr Beaumont's suggestion was to the effect that that phraseology was indicative of Mr Buckley's perception that his instruction in the matter was a joint instruction. Mr Buckley did not accept this. Although, as explored, at some length, in the course of the evidence and as already stated, there is no doubt but that, following the transfer, Mr Buckley acted for Bradley in the registration and perfection of Bradley's title and, although the original application for registration seemed to suggest that Mr Buckley had acted for Bradley in the transaction, Mr Buckley was adamant that his instructions to effect the transfer came from Neville, that his client in respect of the transfer was Neville and that the contrary suggestion, arising from the application document, was no more than a conveyancer's 'white lie', designed to speed up the conveyancing process.
97. I accept that Mr Buckley was acting solely for Neville. The position was, however, as I suspect is very often the case in family transactions of this nature, somewhat blurred. The attendance note, for example, refers to what might be termed collateral, or ancillary, advice, or at least explanations, given by Mr Buckley to Bradley as to some of the Inheritance Tax and Capital Gains implications that might arise from the transfer and, following the execution of the transfer, there is no doubt but that there was a cross-over point, where Mr Buckley began to act for Bradley.
98. Rightly pressed about the reference to 'independent legal advice', Mr Buckley's explanation, on reflection, was that what he was trying to get across in the attendance note and, indeed, to Neville, was that he could, if he wished get legal advice which was completely independent of the presence of his son. He was, as he told me, concerned as to Bradley's presence and the innate possibility, arising from having, as he put it, both parties before him, that one might influence the other and that the advice he was giving might not, for that reason, be regarded as independent.
99. Reverting to the attendance note, Mr Buckley recorded (and I accept) that Neville was very clear as to his intentions. His clear impression was that father and son were very close, that there were absolutely no signs of any pressure being exerted upon Neville. The 17^th March meeting ended with an arrangement that Neville and Bradley would go away and look into the issue that had arisen concerning the garage and, if satisfied as to that, return for the execution of the transfer.
100. Following this interview, or meeting, Mr Buckley, in the expectation that there might be a delay before matters went further, composed a letter to Neville. In the letter, Mr Buckley recited Neville's instruction that he wished to proceed with the transfer and that this was his, Neville's freely made decision. The letter also referred to Pooleys' general advice that property should not be transferred away and enclosed a copy of the note, referred to in paragraph 84, which Pooleys had prepared in an effort to discourage transfers of the kind which took place in this case.
101. That letter was never sent. Had it been sent it would have been sent to Bradley's address in Swindon, this being, as already stated, the address that had been given for Neville in the original documentation provided to Pooleys and, which, as Mr Buckley clearly understood was the address at which Neville was now living.
102. As to that, Mr Buckley's evidence was quite specific, namely that, based upon the original documents, he had, throughout, acted and advised in what was, in fact, the untrue belief that the house was empty and that Neville was living with his son. He told me (and I accept) that Neville, himself, had confirmed that fact, that the 'whole basis' of his advice to Neville rested upon his understanding that the property was empty and was no longer Neville's home and that, in this, as subsequently, in respect of Bradley's supposed occupation of the property, he had been misled.
103. In the event, Neville and Bradley returned to Pooleys, on 18^th March and before the letter could be sent. Mr Buckley saw them without an appointment. He took the opportunity, on this occasion, to see Neville on his own. His short attendance note, prepared that day and after the transfer had been signed, sets out that he went through his intended letter, which he had to hand, with Neville and that he went through, with Neville, every point as to why he should not make the transfer. Mr Buckley recorded that Neville was adamant that he wished to proceed.
104. In elaboration of the above, Mr Buckley told me that he read, slowly and verbatim, the entirety of his firm's note. His recollection is that Neville was somewhat annoyed at this process and felt that Mr Buckley was standing in the way of what he wanted to do.
105. The note, although, undoubtedly, well intentioned, is, with respect, not an easy read. Although prepared for clients, it is very much a lawyer's document. It goes into quite a lot of detail about the problems which may arise in respect of a transfer, the implications of a transfer in the event of the transferee's death, divorce, or bankruptcy, the potential tax implications and the ineffectiveness of such a transfer in preserving assets against liability for local authority fees. It explains, in some detail, the alternative trust structures which could be put in place as an alternative to a transfer. What it does not do, with any clarity, is to make plain that a transfer is irrevocable and that the transferor cannot simply go back. The most it says, under the rubric 'Family Disagreements', is that, in the event of a disagreement, perhaps years down the line, as between parent and child, as to the occupancy of the property, the child may expect to have the final say.
106. Unsurprisingly, in my view, the reading of this document to Neville, in circumstances, where, as described by Mr Buckley, Neville plainly had the bit between his teeth, did not and, with respect, could not seriously have been expected to, make Neville take pause, or reconsider his decision. I have little doubt that the import and the content of the document largely, if not completely, passed him by.
107. In the result and despite Mr Buckley's efforts and concerns, Neville executed the transfer.
108. In argument, Mr Paton submitted that Mr Buckley had done enough to bring home to Neville the consequences of the transfer, such as to enable me to conclude that Neville's decision to go ahead with the transfer was his own fully understood and free decision emancipated from Bradley's presumed influence. Mr Beaumont submitted 'not so' and that I should not be affirmatively satisfied that Neville's decision to make the transfer was made in full knowledge of the material facts and free from Bradley's presumed undue influence and, therefore, that the transfer should be set aside.
109. As I have set out earlier in this judgment, the question for determination is not mechanistic, or formulaic. It is not, simply, the case that the provision of certain advice, or certain information to a person presumed to be subject to undue influence will automatically rebut that presumption. Rather, the question is whether, on a fact sensitive, case by case basis, the court can be affirmatively satisfied that the decision of the particular donor, in a case of gift, to make the gift was a decision freely made by the donor, in full knowledge of the circumstances and emancipated from actual or presumed influence. What may suffice for one donor will not, necessarily, suffice for another.
110. There is, in this case, no evidence of the exercise of pressure by Bradley on Neville. It is not that kind of case. Rather, this is a case, as I see it, where Neville reposed his complete trust and confidence in Bradley to 'look after' the property for him and, in that confidence, executed the transfer in Bradley's favour and, indeed, thereafter, assisted him, so far as he could, in establishing his title. In those circumstances, it is scarcely surprising that, as Mr Buckley's evidence confirms, Neville was a fully willing participant in the transfer, even although, as objectively perceived, the transaction was, for the reasons earlier discussed, potentially very damaging to Neville.
111. It is in this context of a willing, even enthusiastic, participant in a dangerously damaging transaction that the court must be satisfied, if the transfer is to stand, that Neville's willing participation was not a reflection, or consequence, of the presumed exercise of undue influence by Bradley and of the effects of the trust Neville reposed in Bradley, but was Neville's own independent and fully understood decision.
112. In such a case, the donor's trust in the donee and, in consequence, his uncritical willingness to enter into the transaction in question, is likely to require the clearest exposition of the dangers involved in the relevant arrangement before a court can be satisfied that the donor's decision to implement the transaction was genuinely independent and did not reflect the trust reposed in the donee and the influence, actual, or presumed, emanating from that trust. The greater the trust reposed by donor in donee the greater the clarity that will be required before the court can be satisfied that the influence emanating from that trust has been negated
113. In this case I am not so satisfied.
114. I do not think that, in the context that I have just described, the steps taken by Mr Buckley to discourage Neville from implementing the transfer were sufficient to dissipate the risk that the transfer was executed in circumstances where Neville remained under the presumed influence of Bradley, or to satisfy the court that Neville's decision was independent of that influence.
115. It seems to me that, in the context of this case, before the court could be satisfied that Neville's decision was arrived at independently of Bradley's presumed undue influence, Neville would, firstly, have had to be made starkly aware that the course he was taking was one which was irrevocable and which put his and Linda's home at risk and, secondly, that he would have had to be so informed in circumstances whereby Bradley was neither present when that information was imparted, nor sufficiently close by for his presence, nearby, to impact upon, or affect, Neville. Neither of those conditions are satisfied.
116. As to the former, the reason that Mr Buckley did not give Neville the stark advice that he was putting himself at risk of losing his home was that Mr Buckley was not aware that the property remained Neville's home. He had been misled into the belief that Neville had moved in with his son and that the property was empty.
117. The result of that misrepresentation was that Mr Buckley was deprived of the opportunity of spelling out to Neville, in the clearest terms, the risk he was running. Had Mr Buckley known the facts, I have no doubt at all that that is what he would have done. When asked whether he had explained to Neville that, in consequence of the transfer he could be evicted by his son, he told me that he had not done so, because he was unaware that Neville was living at the property. He told me, also and emphatically, that had he known the true position then, as he put it, a whole new range of matters for advice would have arisen.
118. The consequence, therefore, of the misrepresentation made to Mr Buckley was that the core and fundamental advice that needed to be given to Neville, such as to ensure that he was aware of the consequences of his actions and of the risks that he was running and such as to satisfy the court that, in going ahead with the transfer he had done so in full understanding of those risks and consequences, was never given. The steps taken by Mr Buckley to discourage the transfer were no substitute for the absence of this core advice.
119. In the result, this is a case where Neville entered into the transfer without the full understanding of the implications, or effects, of the transfer which is, as explained by Lloyd LJ, in Smith v Cooper, a necessary pre-condition before a court can be satisfied that the presumption of undue influence has been rebutted and the presumed influence dissipated. In those circumstances, the transfer cannot stand.
120. In so saying, I do not overlook the fact that Neville was a party to the misrepresentation. I have carefully considered whether this fact makes a difference. I have concluded that it does not.
121. The likelihood, in my view, is that the misrepresentation emanated from Bradley. He it was who filled in the forms in which the misrepresentation was first expressed. He it was who, after the transaction, perpetrated and perpetuated the lie that he was living at the property. The probability is that he concocted the lie to smooth the transaction and that, for the same reason, Neville joined in.
122. Be that as it may, the reason why the fact, that Neville was party to the misrepresentation and, as it seems to me, may well, also, have used a pretended concern as to the extravagance of his daughters as a justification for the transfer, does not affect the decision that I have made is because both those matters form part of the circumstances of the impugned transaction and because, if, as I have found, that transaction was implemented under Bradley's presumed undue influence, then those matters also derive from the exercise of that influence and so should not be allowed to bar Neville from the relief to which he is otherwise entitled.
123. Even if Neville had been fully informed of and had fully understood the implications and effects of the transfer, I would still not have been persuaded that, in the circumstances in which it occurred, the transfer was one which had not been affected by Bradley's presumed undue influence.
124. There is, in my mind, no doubt but that Mr Buckley's recorded suggestion that Neville take independent legal advice is indicative of his concern, or anxiety, that the situation, at their first meeting, on 17^th March 2010, with Bradley present, was one which did not readily lend itself to the dissipation of any undue influence which Bradley might have exercised. He was, as it seems to me, right to be concerned. In circumstances which give rise to a presumption that one party is exercising, or has exercised, undue influence upon the other, it is not realistic to think that the giving of cautionary advice, even in strong terms, is likely, in the presence of the influencing party, to dissipate that influence.
125. The reality is that the strong likelihood is that the influenced party, here Neville, would, when asked to reconsider, or rethink, the proposed transaction, in the very presence of the person who has exercised influence, find himself unable to disengage himself from that influence. The pressure of the situation would be all against that result.
126. Mr Buckley, rightly recognised this and it was, for that reason that he suggested that Neville take advice entirely independently of his son.
127. By the same token, I am not persuaded that the fact that Mr Buckley took the opportunity, on 18^th March, to speak to Neville on his own would have been sufficient, even if Mr Buckley had been able to give the advice, in the strong terms, that were requisite to Neville's position and circumstances, to dissipate, or negate, Bradley's presumed influence. In fact, as set out earlier, the steps taken to read over to Neville the firm's note on the disadvantages of family transfers, were, I am quite sure, wholly ineffective to bring home to Neville the risks that he ran.
128. Even, however, if Mr Buckley had been aware of the true facts and aware that the transfer was the transfer of Neville's existing home and even if he had put plainly to Neville that the consequence of the transfer would be that he would be left at risk of eviction from that home, I simply do not think that the court could have been at all sure that the advice given would have, effectively, dissipated Bradley's presumed influence.
129. Bradley and Neville had come, that day, to Pooleys to implement the transfer. While Neville was being seen by Mr Buckley, Bradley will have remained, nearby, in an adjacent room. Neville will have been conscious of that fact and of Bradley's expectation that the transfer would be concluded at the termination of the interview. It is hard to see that, in all those circumstances, there is any certainty, or even probability, that the effect of Bradley's exercise of his presumed influence would have been negated. The much greater likelihood, given, after all, that Neville reposed his trust in Bradley and given the pressure occasioned by the circumstances, is that Neville would still have been unable to disengage himself from Bradley's influence.
130. In the result, I find this to be a case where the undue influence which is to be presumed to have been exercised by Bradley in respect of the transfer has not been rebutted. I am not satisfied that the transaction was entered into by Neville independently of that presumed influence, or that the steps taken by Mr Buckley in advising Neville as to the transfer operated, sufficiently, to dissipate, or negate, that influence.
131. Accordingly, I shall set aside the transfer.