Graham-York v York [2015] EWCA Civ 72 – the Common Intention Constructive Trust and Sole Names Cases

In Graham-York v York, the Court of Appeal was called upon (again) to clarify the approach that ought to be taken in quantifying the relative shares of parties where one only of a co-habiting couple holds legal title, but where it has been established that there was a common intention that the non-legal owner have some equitable interest in the property. In this case, the first instance judge held that Ms Graham-York (former partner of the deceased) was entitled to 20% equitable title to the property in which they had cohabited for many years, despite the fact that the total extent of her financial contribution to that property was unclear.

In reaching this conclusion, Lord Justice Tomlinson was once again required to assess whether or not the approach in Stack v Dowden ([2007] 2 AC 432) and Jones v Kernott ([2011] 1 AC 776) was now binding in sole names cases. It is noteworthy that in this case, just as in Agarwala v Agarwala ([2013] EWCA Civ 1763), no mention is made of the House of Lords decision in Lloyds Bank v Rosset ([1991] 1 AC 107). For those who consider that this case is still the leading authority in sole names cases, such must be further proof that the dicta of their Lordships in Stack and Kernott now definitively applies in both sole names and joint names cases.

However, the Court did highlight that the assumptions to be made in joint and sole names cases are not the same, and that therefore the starting point is not the same. In considering that issue, the judge also gave some more general points as to the operation of the common intention constructive trust in a sole names case, as well as to the respective roles of the first instance and appeal court in such situations.

Thus he stated that: 

First, as established in Oxley v Hiscock [[2004] EWCA Civ 546] itself… in the case of a property purchased in the name of one party only, even with the aid of a substantial contribution from the other, there is no presumed starting point of equality of interests… Second, therefore, the suggestion in the present case that equality of interests is the only fair solution is quite hopeless. Third, the judicial evaluation of the fair share is not one in respect of which there is only one right answer. It is an exercise the outcome of which should only be disturbed by an appellate court if it falls outside the ambit of reasonable decision- making.
— Graham-York v York, [25]

This decision is an entirely sensible one. Firstly, since Geary v Rankine ([2012] EWCA Civ 555) and Agarwala v Agarwala (as well as Abbott v Abbott [2007] UKPC 53) there should be no doubt that Stack and Kernott are leading authorities in both sole and joint names cases. To argue otherwise is to give too much force in turn to the dicta in Rosset that only express agreements, or direct or indirect contributions to purchase price, will be sufficient to give rise to a inference of common intention to justify the imposition of the trust. Secondly, the refusal of the Court of Appeal to interfere with the first instance court’s own assessment as to what constitutes an appropriate share is entirely in-keeping with the nature of the questions being asked. Behrens J’s recognition in Aspden v Elvy (2012 EWHC 1387 (Ch)) that the exercise is, to an extent, an arbitrary one [128], confirms that an appellate court should only interfere where the exercise of judicial discretion is unreasonable. Such will prevent this sort of unpleasant family dispute continuing beyond such times as is necessary, both for the benefit of the family members themselves, and for the benefit of any creditors. 

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