PROPERTY CHAMBER
FIRST –TIER TRIBUNAL 
LAND REGISTRATION DIVISION

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

LAND REGISTRATION ACT 2002

REF NO 2012/1122

BETWEEN
DELMONIA ELIZABETH ELLIS-CARR
Applicant
and

MARK LEVY
Respondent

Property address: 26 Elmar Road, London N15 5DJ
Title number: NGL 196663

Before: Judge Hargreaves
Alfred Place
8th August 2013

Applicant represented by Simon Brilliant instructed by Charles-Henry, Romford
Respondent represented by Christopher Boardman instructed by Richard Pearlman LLP Solicitors

___________________________________________________________________________

DECISION

Keywords
Family Law Act 1996 – home rights notice – meaning and effect of “intention” in statute – Applicant’s evidence - property never occupied as a matrimonial home – whether husband ever had entitlement to occupy by virtue of a beneficial estate or interest or application -  application opposed by Applicant’s husband’s trustee in bankruptcy – effect of orders relating to property made by Registrar Derrett in the bankruptcy upheld by Norris J on appeal – Mental Capacity Act 2005 – CPR 21 - s283A Insolvency Act – s261 Enterprise Act 2002    

Cases cited
Masterman-Lister v Brutton [2002] EWCA Civ 1889
Cunliffe v Goodman [1950] 2 KB 237
Daley v Hargreaves [1961] 1 AER 552
HOTT v ABP [2011] 2043 (Ch) (Vos J)

1.	For the following reasons I direct the Chief Land Registrar to cancel the Applicant’s application made on 8th June 2012 in Form HR1 dated 31st May 2012 for registration of a notice of home rights pursuant to the Family Law Act 1996.

2.	The background to this application has given rise to a number of interesting points which have been raised by Mr Brilliant for the Applicant, and strenuously resisted by Mr Boardman for the Respondent. I am indebted to both for the clarity of their submissions, in particular their closing submissions, which were served  in writing sequentially in September and October after a one day hearing in August which was dominated by procedural disputes in the morning, and the Applicant’s oral evidence as the only witness, in the afternoon. Whereas the Respondent could with some justification complain that the structural basis on which the Applicant put her case in detail was developed at a late stage, the Respondent was able to respond in full, and appears to have had the benefit of considering the transcript of the Applicant’s evidence for the purposes of completing his skeleton argument, which has proved helpful.

3.	In order to understand the arguments and legal submissions, it is necessary to consider the chronological background leading to this particular application, most of which is not disputed and centres on the bankruptcy of Errol Ellis-Carr, the Applicant’s husband. Mr Ellis-Carr was born in about 1951/2, the Applicant in about 1976/7. They married in November 2000 when he was 49 and she was 24 (SB p6).  Mr Ellis-Carr was the only son of Violet Ellis (aka Stewart). All references are to the trial bundle (TB) and the supplementary trial bundle (SB). 

4.	 Mrs Ellis and Mr Ellis-Carr were registered as joint proprietors of the property on 1st August 1972 (SB p8). There is nothing on the register to suggest that they were other than beneficial joint tenants with equal shares in the equity. Mr Ellis-Carr was a solicitor whose practice was intervened by the Law Society in 1988 and he was subsequently convicted of theft and imprisoned. The Law Society issued a bankruptcy petition in February 1994 based on an unpaid debt exceeding £100,000 and he was adjudged bankrupt on 6th June 1994 (SB p1) whereupon his beneficial interest in the property vested in his trustee in bankruptcy. In his bankruptcy questionnaire Mr Ellis-Carr declared that he jointly owned the property with his mother, and that it was subject to the interests of a number of creditors. In 2000 he enquired about buying back his interest from the Official Receiver, the same year that he married the Applicant. On their marriage certificate his address was given as the property, hers as no. 36 Elmar Road. Mr Brilliant made it clear on instructions that even if the parties had co-habited at the property prior to the wedding, they never did afterwards, as will be clear from the review of the Applicant’s evidence. In 2001 the Respondent was appointed as Mr Ellis-Carr’s trustee in bankruptcy (SB p3).

5.	Mrs Ellis continued to live in the property. The Respondent’s case is that he corresponded with her solicitors, Porters, between 2002-2006, with a view to finding a means whereby she could buy out his interest and continue to live in the property. I have no idea how realistic those proposals were, but they came to nothing. 

6.	On 15th January 2007 (the date has significance) the Respondent issued an originating application against Mr Ellis-Carr and Mrs Ellis seeking a declaration that he and Mrs Ellis were beneficially entitled to the property in equal shares, and for orders for possession and sale. Counsel appeared on the application for the trustee but neither of the respondents to his application did. Registrar Derrett made an order on 8th March 2007 which is at TB p6. She declared that the Applicant and Mrs Ellis were beneficially entitled to the property in equal shares, that the respondents should give up possession by 4pm on 5th April 2007, and that the property should be sold with vacant possession.  This (first) order was not appealed.  Mrs Ellis did not move out. 

7.	On 1st April 2007 the provisions of s283A Insolvency Act 1986 provided that if the Respondent had not applied for an order for sale of the property before 1st April then the bankrupt’s interest would re-vest in Mr Ellis-Carr automatically. The first application was made by the Respondent in time.

8.	Mrs Ellis died on 2nd October 2008 at the property (SB p4) intestate and Mr Ellis-Carr obtained letters of administration on 6th January 2010.

9.	The Respondent sought to enforce the first order but in the course of doing so discovered that there was a potential issue as to Mrs Ellis’ mental capacity to litigate in 2007. There was no issue as to Mr Ellis-Carr’s capacity and there is nothing to suggest that he was not aware of the first order, which as I have observed, he did not appeal. The capacity issue came to light in 2009 and the Respondent wrote a letter which is relied upon by the Applicant, in which he expressed the view that “However, when it was established that the debtor’s mother who was the sole occupier was found to be mentally incapacitated the [first] order became void” (TB p9). Whatever the Respondent wrote in that letter is in my judgment subject to the views of Registrar Derrett and Norris J subsequently; in any event, it is clear that by the summer of 2009 the Respondent was committed to regularising the impact of the capacity issue. On 26th March 2010 the second application was issued in which the Respondent sought the same declaration as to the respective interests of the proprietors in the property, possession and sale etc, with additional claims for a sum exceeding £30,000 to be deducted from Mr Ellis’s share of the net proceeds of sale in respect of an occupation rent and for confirmation of the first order. This time it was opposed.

10.	Mr Ellis-Carr filed evidence opposing the second application in a statement dated 23rd July 2010 (TB p11). Nothing in that statement suggests he or the Applicant wanted or intended to live in the property. Grant Rechnic of Rochman Landau LLP filed and served a statement in response in August 2010 (TB p15). In particular he took issue with Mr Ellis-Carr’s contention that the first order was void (see paragraph 3, TB p16). It is clear that the argument that the first order was void was raised in the Respondent’s counsel’s skeleton argument. That was Mr Boardman. Registrar Derrett heard the Respondent’s second application on 24th May 2011 in the absence of Mr Ellis-Carr: the second order is at TB p56 and amongst other things it “DECLARED that the order of … 8th March 2007 was validly made notwithstanding that … [Mrs Ellis] may have lacked capacity within the meaning of the Mental Capacity Act 2005” and “confirmed” the order. There is a transcript of the judgment at TB p39 which I have read and taken into account. Mr Ellis-Carr had appeared in person on two previous occasions when directions were given and had a previous hearing vacated. Mrs Ellis-Carr did come to court (but does not appear to have made any submissions) though Mr Ellis-Carr did not, as the Registrar’s decision recites in some detail. Registrar Derrett did not adjourn  the hearing despite the absence of Mr Ellis-Carr for reasons she gave, and dealt with it on the merits. Paragraphs 34-42 deal with the capacity point. At paragraph 51 she rejected the argument that the first order was void, relying on CPR 21.3. As the decision is exhibited in full, I do not propose to refer to it in any further detail.

11.	Mr Ellis-Carr sought permission to appeal the second order, and the application came on for hearing before Norris J on 23rd January 2012. The judgment is at TB p28, [2012] EWHC 63 (Ch), and again, I have taken it into account. Mr Boardman appeared for the Respondent again, and Mr Ellis-Carr was represented by Mr Allston of counsel. Again, it would be wholly unnecessary for me to try to paraphrase the decision, which also provides a detailed background to the various applications relating to the first and second orders. Paragraphs 39-44 are relevant to the application before me and contain Norris J’s conclusions on the validity of the first order and the effect of s283A. In respect of both arguments put forward by Mr Allston (summarised at TB p35), he described the points as “bad”.  Norris J granted permission to appeal but dismissed the appeal. The effect was that by early 2012 Mr Ellis-Carr faced the real prospect of the property being sold with no net gain to himself. The Respondent made the point in counsel’s first skeleton argument that nineteen years after the bankruptcy order, the Respondent has not made a distribution to Mr Ellis-Carr’s creditors, and assessed costs estimated to exceed £250,000 stand no chance of being paid until the property was sold. He also complains that the Applicant’s HR1 application scuppered a potential sale of the property. Of themselves these points are arguably prejudicial: they do not answer the Applicant’s case, but it is important as they provide some background to this application and the Applicant’s evidence.

12.	The Applicant made her HR1 application six months later. It was referred to the (then) Adjudicator in November 2011. Somewhat surprisingly the Respondent sought a last minute adjournment (to which the Applicant consented), but which I refused on the grounds that the Respondent has complained regularly about delays in the conduct of the reference, and it was necessary to finalise a comparatively long outstanding reference sooner rather than later, particularly with the background to this reference.

13.	The way in which the Applicant presented her case prior to the hearing was less than compelling and the Respondent has suggested that the driver behind the application is Mr Ellis-Carr who might have a working relationship with Charles-Henry. By her statement of case dated 20th February 2013 (TB p74) her entitlement to register a notice of home rights was not adequately particularised and the main thrust was a claim that the Derrett/Norris decisions were wrong, were heading for the Court of Appeal, and in any event not binding on the Applicant who was not a party to those proceedings. The Respondent’s statement of case also lacked the coherence of later written submissions (TB p81) but correctly asserted at p85 that the Applicant had not provided any evidence that she ever occupied the property, it not being clear precisely how she was then putting her application. The Applicant sought to remedy that by providing a short statement dated the 8th August, which I allowed her to rely on, giving Mr Boardman time to prepare his cross-examination. So far as that statement refers to issues of law, I do not believe the Applicant really understood the contents. The thrust of the Respondent’s position is that this application has at all times been pursued by Mr Ellis-Carr using the Applicant as a front, with the intention of foiling the Respondent’s right to enforce the possession and sale orders. Whilst that is an entirely understandable response, it does not mean that I ignore the submissions made on the Applicant’s behalf or dismiss her evidence without giving them both consideration, always taking into account whether it is open to me to reach different conclusions from those already reached by Registrar Derrett and Norris J. As for whether the application was an abuse of process, the Respondent never made such an application and it seems to me that the best approach is to deal with all the submissions as they evolved by the end of submissions, and deal with them in full.

14.	There are issues of law and fact in this case. I deal with the points of law raised by Mr Brilliant first, because that is the more logical approach: he submits that for the application to succeed, the Applicant has to satisfy two conditions, ie (i) that Mr Ellis-Carr was entitled to occupy the property within the meaning of the FLA 1996 (raising matters of law) and (ii) that she had the requisite intention within the FLA 1996 (a mixed question of law and fact).

Family Law Act 1996 and Mr Ellis-Carr: the first condition

15.	Taking Mr Brilliant’s emphasis (and adding some of mine), ss30-31 FLA 1996 provide as follows:-

“s30(1) This section applies if –
(a)	one spouse … (A) is entitled to occupy a dwelling-house by virtue of
(i)	a beneficial estate or interest or contract; or
(ii) any enactment giving [A] the right to remain in occupation; and the other spouse is not so entitled.
(7) This section does not apply to a dwelling-house which –
(a) in the case of spouses, has at no time been, and was at no time intended by them to be, a matrimonial home of theirs …

s31(1) Subsections (2) and (3) apply if, at any time during a marriage … A is   entitled to occupy a dwelling-house by virtue of a beneficial estate or interest.
(2) B’s home rights are a charge on the estate or interest …”.
	
16.	As to the first condition, Mr Brilliant submitted that the Applicant is required to and can prove that when she made her HR1 application on 8th June 2012, Mr Ellis-Carr was entitled to occupy the property by virtue of a beneficial estate or interest.  (Mr Boardman says he is wrong to limit the requirement to only having to show that Mr Ellis-Carr had a beneficial interest at the date of the application, but I do not have to decide this point.) However, because his interest vested in his Trustee in bankruptcy in 1994, the Applicant has to show either that the Trustee was divested of that interest prior to June 2012, or (alternatively) that Mr Ellis-Carr had acquired some other interest in the property within s30(1) of his own account.

S283A Insolvency Act and the effect of the first order made by Registrar Derrett 

17.	The Applicant accepts that the first application issued by the Respondent on 15th January 2007 was validly made pursuant to CPR 21.3 and r7.51A Insolvency Rules 1996 even if at the time Mrs Ellis lacked capacity to litigate, because it is permissible to issue and serve a claim form before applying for the appointment of a litigation friend and the originating application is the equivalent of a claim form (confirmed by Norris J in paragraph 43 TB p35). But so far as the Applicant still seeks to run the point, it is wrong to contend that the issue and service on Mrs Ellis was of no effect (for the reasons given by Norris J in paragraph 44 TB p35). In any event, these points have been dealt with by Norris J and it would not be open to me to reach different conclusions even if I disagreed with his decision (which I do not). The application was also made in time for the purposes of s283A which came into effect on 1st April 2004 as modified by s261(7)-(10) Enterprise Act 2002 and provides (with emphasis) as follows:-

“(1) This section applies where property comprised in the bankrupt’s estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of –
(a)	the bankrupt …
(2) [On 1st April 2007] the interest mentioned in subsection (1) shall –
(a) cease to be comprised in the bankrupt’s estate, and
(b) vest in the bankrupt (without conveyance, assignment or transfer)
(3) Subsection (2) shall not apply if [before 1st April 2007] –
(b) the trustee applies for an order for sale in respect of the dwelling –house
(c) the trustee applies for an order for possession of the dwelling-house ..
(4) Where [an application is made in accordance with subsection (3)] and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application
(a) cease to be comprised in the bankrupt’s estate, and
(b) vest in the bankrupt ..”  

18.	Therefore the Respondent had to apply for an order for sale or possession before 1st April 2007 otherwise Mr Ellis-Carr’s beneficial interest in the property would re-vest in him automatically. If it did, he would regain the interest he required under s30 FLA 1996 to trigger the basis of this application. Mr Brilliant’s closing submissions effectively acknowledge that the application was validly made in accordance with CPR 21 and in time pursuant to s283A. Those appropriate acknowledgments put him in the position of having to make the bold submission  (new in closing) that I should give s283A(4) a “wide, generous and purposive interpretation” and in effect, substitute a different decision for the one reached by Registrar Derrett ie on the basis that had she known when she made the first order that Mrs Ellis lacked capacity, she would have dismissed the Respondent’s application, with the consequence that Mr Ellis-Carr came within the FLA, and so subject to proving intention, the Applicant would be entitled to home rights since March 2007. 

19.	Before dealing with Mr Boardman’s response, which accuses the Applicant’s submission of asking me to engage in a “complete fiction”, I note (i) that at no  material time did Mr Ellis-Carr suggest his mother lacked capacity and (ii) it would be hard to persuade any judge to proceed on the basis that it would be appropriate to substitute a different decision when at the relevant time the first judge (Registrar Derrett) had no evidence before her as to capacity on which she could properly have reached a different decision; (iii) the appropriate step would have been to appeal her decision. When her second decision was appealed, Norris J confirmed her order. It cannot therefore be revisited, at least not by me, and not in this jurisdiction. I would add that at no time has there been any proof that Mrs Ellis lacked capacity: when it came to the Respondent’s case, I consider that it is appropriate not to rely on what he wrote in a letter in a different context, but to see how the matter was put before Registrar Derrett on the second occasion, and before Norris J, which (as I understand it) was on the basis that the second application was made on a precautionary basis. That apart, there is nothing in the second decision of Registrar Derrett, upheld by Norris J, to suggest that there are any grounds on which she would have come to a different decision either in March 2007, or on the second occasion, see eg paragraph 40 at TB p49. I also agree that to re-write the decision would be counter to the application of the principles, relied upon by Norris J (paragraph 41) TB p35, in Masterman-Lister, which I would endorse. 

20.	It follows that I reject the Applicant’s submissions based on the application of s283A and the effect of the first order as confirmed by the second order of Registrar Derrett. Mr Ellis-Carr’s beneficial interest in the property did not revive on 1st April 2007. I would add, though the point was not directly raised at the hearing, that even if the validity of the first order against Mrs Ellis might have been in doubt, I do not see how that affected the order so far as it applied to Mr Ellis-Carr. If I am right about that, the Respondent had in any even obtained a valid order for possession and sale against him before 1st April 2007. 

The FLA and Mr Ellis-Carr’s interest as personal representative of Mrs Ellis

21.	These are new submissions on behalf of the Applicant, expanded in the closing submissions at paragraphs 38-41, not aired before Registrar Derrett or Norris J, and only foreshadowed by paragraph 13 of the Applicant’s August statement: “Errol’s mother died in 2008. Errol inherited his mother’s house. I am therefore entitled to register an interest in the property …”.  

22.	The starting point is that Errol is entitled to Mrs Ellis’s entire estate under the intestacy provisions (common ground, subject to the Respondent’s claims). The property remains registered in joint names and there has been no assent to Errol. There was no evidence before me as to any activity undertaken by Mr Ellis-Carr as his mother’s personal representative, save as to taking out the grant of representation. What Mr Brilliant submits is that as sole representative and sole beneficiary from January 2010, Mr Ellis-Carr is entitled to occupy the property by virtue of a beneficial estate or interest. Mr Boardman’s closing submissions at paragraph 40 contain a comprehensive attack on the conclusions which Mr Brilliant seeks to persuade me to adopt. 

23.	If I analyse the position as it was in January 2010, I do not think I need to consider Mr Boardman’s detailed reply to Mr Brilliant’s basic proposition. The debate in his closing submissions verged on the semantic and an analysis of a particular reference by Mr Brilliant to paragraph 992 of volume 103 Halsbury’s Laws, 5th ed (2010) headed “Nature of the personal representatives’ and the beneficiaries’ interests”. 

24.	In my judgment the correct approach is as follows, which is the final position adopted by Mr Boardman (paragraphs 41.3-4) and which I consider is correct. When Mrs Ellis died, there was an outstanding order for possession and sale of the property against both Mr Ellis-Carr and Mrs Ellis. That order had not been set aside or appealed. To the extent that it might not have been valid against Mrs Ellis the position against both Mr Ellis-Carr personally remained the same and as Mrs Ellis’s personal representative (as he was named as defendant before both Registrar Derrett the second time, and before Norris J) was confirmed. So when Mr Ellis-Carr obtained letters of administration, he personally had no right to occupy the dwelling (common ground) but he did not in my judgment acquire rights either as personal representative or beneficiary either: Mrs Ellis’s interests were subject to the possession order already obtained and which, pursuant to the three decisions already referred to, have had effect since March 2007. In either capacity Mr Ellis-Carr would have been a trespasser. His entitlement to occupy the property on his own behalf had gone and not been revived by the s283A point.  A possession order was outstanding (and confirmed) against Mrs Ellis and either as personal representative or her beneficiary, I do not see how Mr Ellis-Carr could have occupied except as a trespasser in relation to the Respondent. The FLA requires Mr Ellis-Carr as “A” to be “entitled to occupy” by virtue of certain interests. If those interests have been overtaken by legitimate third party rights, as in this case, then he has, in my judgment, no such entitlement.   This disposes of the second point relied upon by the Applicant in relation to the qualifying status of Mr Ellis-Carr under the FLA.

The FLA and the second requirement: intention

25.	Having reached the conclusions I have expressed above, I do not have to deal with intention in order to dispose of the reference. But it played an important part in the application and I consider it necessary to reach a decision and give reasons. There is yet another difficulty in this case because the Applicant’s position was put on the basis that the property had never been occupied after their marriage, only clarified for the first time at the hearing. That is not an outright bar for the purposes of s31 if Mr Ellis-Carr could show an entitlement to occupy after November 2000, which I have decided he cannot.  The provisions of s30(7) enable a claim to be made if the property has not been a matrimonial home so long as the Applicant can show that it was “intended by them to be a matrimonial home of theirs”. The basis on which the Applicant put her case was unparticularised to say the least, but I am satisfied that there are more than sufficient grounds, as the result of the evidence she gave in cross-examination, on which I can find that she failed to demonstrate the requisite intention, on the balance of probabilities. As to the fact that her witness statement was limited, Mr Brilliant submitted that this did not impact on the Applicant’s integrity, but when it is the crucial issue for the Applicant to address, the lack of particularity in written evidence begs questions about the basis for the application.  Although in respect of some of the Applicant’s evidence I share Mr Brilliant’s view that it would be hard to make it up, that does not of itself turn the story into a convincing basis for the application. The Applicant’s evidence as it unfolded was purely oral, with no documentary evidence in support.

26.	Mr Brilliant researched the background to s30(7), and the results are set out in paragraphs 44-50 of his closing submissions, to which I do not intend to refer in detail. He referred to Cunliffe v Goodman as he had done in oral submissions in August, for a working definition of “intention”, quoting Asquith LJ at p253: “X cannot, with any due regard to the English language, be said to “intend” a result which is totally beyond the control of his will. He cannot “intend” that it shall be a fine day tomorrow: at most he can hope or desire or pray that it will”. Cunliffe v Goodman is a case dealing with the landlord’s intention to demolish premises pursuant to s18(1) Landlord and Tenant Act 1927. As Mr Brilliant now submits, that is a different kettle of fish (my words) to an Act seeking to give protection to people such as the Applicant in relation to matrimonial homes, and therefore I should interpret “intended” and s30(7) favourably to the Applicant, there being no authority on the point. He suggests that “intended” meaning “suitable or apt” would be a better approach. But it is not how he put his case in opening, as Mr Boardman points out, and it represents a shift from the Cunliffe approach from which Mr Boardman cites in full in his skeleton argument, and which as he says, underpinned the approach he took in cross examination. The “suitable or apt” submission comes from Salmon J in Daley v Hargreaves at p556, but has to be read in the context that the case concerned a definition of a motor vehicle “as a mechanically propelled vehicle intended or adapted for use on roads” in the course of which, giving judgment he said “ “intended for use on roads” may mean no more than suitable or apt for use.” But I am not persuaded to extract from Daley any support for the construction urged on me by the Applicant. That would be ignoring the fact that (i) Daley was a case about dumper trucks (ii) “intended or adapted” is used in the passive not the personal sense as in s30(7) and (iii) Salmon J expressly limited his views to the case before him and “not to dumpers generally”. I do not consider that just because a house might be “suitable or apt” for the Applicant, she can establish the requisite “intention”, though of course it might be easier to establish intention where a property is suitable or apt in the first place, and harder to establish intention where a property is not suitable or apt for the purpose of use as a matrimonial home. 

27.	Cunliffe might therefore have been a case about an intention to demolish but is a better guide to “intention” than Daley. In particular what the quotation as a whole stresses is that the intention has to be rooted in reality, even if subjective (my emphasis):-

“ “Intention” to my mind connotes a state of affairs which the party intending - [X] – does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about and which, in point of possibility he has a reasonable prospect of being able to bring about, by his own act of volition ……… If there is a sufficiently formidable succession of fences to be surmounted before the result at which X aims can be achieved, it may well be unmeaning to say that X “intended” that result.” 
 
28.	What I take from the above, which I prefer to the Daley submission, is that even if the test is subjective in part, it has to be a reasonably realisable intention taking all the circumstances into account. This approach is to be found in recent cases dealing with Cunliffe; for example, see the decision of Vos J (as he was) in HOTT v ABP from paragraph 100 onwards. So I look at (i) what the Applicant says about intention, and (ii) I consider whether she could have brought it about in practical terms, whether it is feasible. It also has to be the intention of both parties to the relationship, and it is noteworthy that Mr Ellis-Carr has not given evidence.  Mr Brilliant urged me to accept the Applicant’s evidence (which I deal with below) and conclude that although she might have been the principal person with intention there is no reason not to infer joint intention. On the facts of this case, I do not think I can infer any such joint intention without good supporting evidence, and such evidence as there was about Mr Ellis-Carr’s intention was ambivalent at best. Where the property has never been occupied as a matrimonial home by the relevant couple, and the supporting evidence is scanty to say the least, with nearly thirteen years of occupying different properties as a married couple, I consider that the lack of supporting evidence from or about Mr Ellis-Carr makes it even more necessary for me to consider the evidence carefully. The Applicant’s recent written evidence, while an improvement on her statement of case, sheds little detail on the matter of intention, though there is no question that she bears the burden of proof. She maintains that she has whatever rights she might have as Mr Ellis-Carr’s wife, while dismissing the Respondent’s claim to any interest in the property or right to appear in the Tribunal. As for intention, her written evidence is limited to what she says in paragraph 14: “It has always been our intention to use the house as a matrimonial home for Errol and I and our children we lived at the property from when we met in 2000 and before we were married while Errol’s mother was in hospital.”  Her evidence, as tested in cross examination, does not support the claim on intention on the balance of probabilities.

29.	The Applicant gave no additional oral evidence in chief, but was cross examined at length. She started to co-habit with Mr Ellis-Carr in the property in about April 2000; he had five children by his first wife who were also there but seem to have left by the summer of 2000.  When the Applicant applied for the marriage licence, she was not actually living in the property because she had fallen out with Mrs Ellis, and gave another address down the same road. Mrs Ellis was admitted to hospital some time before the marriage but in about July 2000 only the Applicant, Mr Ellis-Carr and Mrs Ellis were living there. It is a three-bedroomed house, with two reception rooms, a kitchen and a bathroom on the ground floor, a standard terraced house. The Applicant thought it was Mrs Ellis’ house because both Mrs Ellis and her husband told her that was the case. They moved out the day they got married: Mrs Ellis and her son did not get on. The Applicant was reluctant to confirm in cross-examination that she was not living at the property just before the marriage. They had no money, and stayed the night of the marriage and then subsequently at the home of their witness at the marriage ceremony, coincidentally a well known QC. They then stayed with another friend before starting to live upstairs at the business premises where Mr Ellis-Carr was working (without permission) until his employer realised what was going on and provided them with a deposit to move into 20 Moree Way, a three bed-roomed property. At that time she said communications with Mrs Ellis were good, she wanted to live there, they used to have dinner there. The Applicant maintained that Mrs Ellis would say she did not want the Applicant and her family of small children living with her, but she would not confirm that Mrs Ellis did not want them at all. Cross examined about Mrs Ellis’s solicitors’ claim in 2002 that Mrs Ellis said her son treated her badly, the Applicant said the contents of the relevant letter (which she appeared not to have read before) were untrue. Mrs Ellis, she said, had mental issues. The Applicant would not accept that Mrs Ellis would have prevented the family from living at the property and said that at sometime in 2005, she had come to live with them.  She clearly returned to the property because that is where she died, something of a recluse.

30.	While living at Moree Way, the Applicant had another daughter in February 2004. They moved to their current address, 35 First Avenue, in about September 2008. She would not admit to Mr Boardman that she would never have lived at the property, and accused him of trying to “mess with her head” by getting her to agree otherwise. But it is significant that after the marriage, both on the move to Moree Way, and then on the move to First Avenue (which occurred after the first possession order was made and was triggered by cold and damp at Moree Way which was bad for one of the children who is asthmatic, as well as being too small for the growing family) when throughout the Applicant said she was struggling to pay rent, despite having at some stage asked Mrs Ellis if they could live at the property, they never returned, even temporarily. Even though it might have been cramped, it would have been possible for them all to fit in, on her evidence (especially when compared with the amount of space offered by social housing providers), and that might well have been the case when the children were little. If so, it begs the question why they never moved in if it was a practical home for the family. If not large enough, they could never have reasonably thought they were going to move in. 

31.	The Applicant was aware that the Respondent had issued possession proceedings in 2007, but said to Mr Boardman that the reason why she had not made an HR1 application at the time was because the house belonged to Mrs Ellis and she was living there. She admitted that she still regarded the property as belonging to Mrs Ellis. I consider that direct answer to undermine her application: at the same time she said that her husband and his mother were always arguing, but that the Applicant could not be expected to do anything about it until after Mrs Ellis died. The effect of that evidence is that moving into the property with the children, so long as Mrs Ellis was alive, was never on the cards. By the time Mrs Ellis died, the possession order had been made, but they visited the property after the death and obtained access by using keys in Mr Ellis-Carr’s possession. The last time the Applicant visited the property was 2008 or 2009, the locks having been changed since, in about 2010. 

32.	The property at First Avenue is a four-bedroomed house. The Applicant and her husband have both signed yearly tenancy agreements since they moved in. Most of the rent has been paid by housing benefit from 2008 because Mr Ellis-Carr has not  been working; there have been two eviction notices this year due to non-payment of rent (caused by the changes to housing benefit payments). The Applicant seemed to believe that they could have lived in the property rent-free, which is not the case. But again it is significant that despite turning up personally before Registrar Derrett in 2011 after Mr Ellis-Carr obtained letters of administration in 2010, there is no evidence that the Applicant thought to raise the issue of her FLA rights or physically move into the property after Mrs Ellis died: “I wasn’t thinking like that”. She then partly contradicted herself by asserting that she was aware of her FLA rights since 2008 but that Mr Ellis-Carr could not be persuaded to do anything. That suggests that his intention was questionable.

33.	In his oral closing submissions, Mr Brilliant submitted that until about a week before the wedding, the property was a pre-nuptial matrimonial home. On the facts of this case as a whole, I do not find anything in that which supports the Applicant to establish the requisite intention, though in other cases it might. But any intention to live in it as a matrimonial home at that (critical) time is contradicted by the simple fact that the Applicant and Mr Ellis-Carr did not do so at the most obvious time, despite the fact they had nowhere else to live and without the generosity of friends, were homeless. In fact, as Mr Brilliant realistically submitted in closing, it would be difficult to persuade the court that a relevant intention was established between 2000 and Mrs Ellis’s death in 2008, as she was a difficult person, the evidence suggested that she was not letting people into the property on occasions, and family life in the property would not have been possible, not to mention the problem she seemed to have with Mr Ellis-Carr. I agree with that analysis. It takes into account the reality of gauging the requisite intention against the background facts. That was a submission based on the Cunliffe approach.

34.	Mr Brilliant submitted that the situation changed in 2008 when Mrs Ellis died: there was an empty home, and the Applicant, being a sensible wife, wanted to live in the property, but I think she lacked the support of Mr Ellis-Carr. They also faced the problem of the first possession order, which, even if I had accepted Mr Brilliant’s analysis about the effect of s283A, had not been overturned or appealed by Mr Ellis-Carr. His failure to challenge the first order is significant because it suggests that he was prepared to accept its effect. That would be inconsistent with an intention to live in the property. What Mr Brilliant submits however is that I should treat the period from the first to the second/confirmation order (from the date of Mrs Ellis’s death) as a time during which the Applicant could establish intention, but that would be unjustified on the facts and wrong in principle: there is no evidence of any difference in the Applicant’s approach to the property during this period, and after Mrs Ellis’s death, when they could gain access, there is no evidence that they sought to move in, or do a deal with the Respondent whereby they could rent the property from him. It is not supported by Mr Ellis-Carr’s apparent acceptance of the first order or the fact that the Applicant did not think to raise her alleged FLA rights at the first hearing. There is nothing in the second and third decisions to show that the Applicant’s alleged rights were raised at all.

35.	The thrust of the Applicant’s evidence is that the idea of moving into the property now was motivated by the fact that they could save rent if they did so. She talked about extending the property but the little evidence available demonstrates that financially that cause is hopeless: they are in arrears with rent, receive housing benefit, and Mr Ellis-Carr does not work. Any desire to move back in overlooks the possession order and the Respondent’s rights: the Applicant expressly accepted that she could not break back into the property once the locks had been changed. The Respondent is not about to hand over the keys and complains that this application thwarted a potential sale to a buyer who has now disappeared. The Applicant denies that the HR1 application is a last ditch attempt to frustrate the Norris J decision, but at the end of much litigation, it has the appearance of a last ditch attempt to derail the previous orders. She maintains, as evidence of her genuine intention, that she had a part in drafting the statement of case but that is not credible; she demonstrated in the witness box that she did not know who Norris J is or what CPR 21 is about, for example, and I agree with Mr Boardman’s observation that she lacked familiarity with the contents of the trial bundle, being visibly flustered when asked particular questions about certain contents. When she was asked who drafted the witness statement, Mr Ellis-Carr interrupted from the back of the court.  Mr Brilliant criticised Mr Boardman for raising issues as to the genuineness of the application, but he was entirely justified in doing so. I do not think it was her idea at all. That does not mean I reject all her evidence, but it does mean that I regard it with even more care.

36.	The problem with being invited to find that the Applicant can establish requisite intention from 2008 is that it coincides with the move to First Avenue, a bigger property, and her evidence that Mr Ellis-Carr was not enthusiastic about moving back, as well as the factors listed in paragraphs 34- 35 above. Any intention over this period amounts to wishful thinking at best on behalf of the Applicant, and for reasons already given, that does not amount to the requisite intention for the purposes of the FLA.  As a project, it is unrealisable.

37.	Mr Brilliant submits in his closing written submissions that I should find the Applicant an impressive person, who has stood by her husband and family in trying circumstances, and could have mislead the Tribunal had she wished to do so. He submitted therefore that I should find the second condition satisfied for the following reasons: “53. On any fair reading of the oral evidence [they] regarded the house as suitable or apt after the death of Mrs Ellis …. The argument that the house did not have sufficient bedrooms should cut little ice. …. 54. [Her] oral evidence was that she did intend to live at the house and she wanted Errol to extend the roof. She gave credible evidence that it was a struggle to pay the rent, and that the burden would have been eased if the family could have lived at the house.”  This submission overlooks the evidence as a whole, the lack of any  credible supporting evidence from Mr Ellis-Carr, and the overwhelming difficulties of putting any such intention into effect which have existed from 2007 at the latest. Whereas I consider that the Applicant told the truth about the basics of family life, on any matter on which she was pressed by Mr Boardman, she was often hesitant, flustered, and I am at a loss to see how the family could have lived at the property rent-free with a roof extension on the facts as presented to me. There was insufficient evidence on which I could make any generalised findings about the Applicant’s character as a whole. She was conscious of the answers she ought to be giving, hence the accusation that Mr Boardman was “messing with her head”. But I am not even sure that she really understood the serious nature of the proceedings, having informed me that she needed to be at a job interview at 4pm, with a timely reminder coming through on her mobile phone. 

38.	Mr Boardman’s vigorous response to Mr Brilliant’s submission is contained in paragraphs 9-19 of his written closing submissions, well supported with footnotes supplied with quotes from the transcript. Without referring to his submissions in detail, they present a comprehensive answer to the Applicant’s case on the facts. Having set out my own findings on the Applicant’s evidence above, I prefer Mr Boardman’s submissions on the facts and the concept of the requisite intention, to those made on behalf of the Applicant. In conclusion, being unable to prove no more than wishful thinking on her own behalf, the Applicant cannot prove that she and Mr Ellis-Carr had the requisite intention from 2008, and the application is therefore cancelled.

39.	In the circumstances, the usual approach is that the Respondent, as successful party, will be entitled to his costs. The Respondent is therefore invited to apply for costs, with an updated schedule, the application to be filed and served by 6th December 2013. The Applicant should file and serve a response by 17th December and the question of costs will be dealt with after that.  

BY ORDER OF THE TRIBUNAL

DATED 19TH NOVEMBER 2013