Curran v Collins [2015] EWCA Civ 404 - White Lies, Subterfuge and the Common Intention Constructive Trust

In Curran v Collins [2015] EWCA Civ 404, the Court of Appeal provides us with further guidance on the application of the tests in Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2011] 1 AC 776 for the creation of a common intention constructive trust in sole names cases. It has already been noted on this blog (see blog post on Graham-York v York [2015] EWCA Civ 72) that there are multiple judgments confirming the application of such principles to sole names cases (not least in Agarwala v Agarwala [2013] EWCA Civ 1763, and Geary v Rankine [2012] EWCA Civ 555). That this is the correct approach, and that the law has “moved on” from Lloyds Bank v Rossett [1991] 1 AC 107 is now beyond dispute. There are however still some areas of uncertainty and some of these have been addressed by this decision.

The case involved a couple who had been in a relationship for some time (1978/9-2010), but who had only co-habited since 2002. The property in which they lived, “The Haven”, had been purchased in the sole name of Mr Collins through a mixture of proceeds of sale from previous property purchases, a mortgage, and a loan and gift from Mr Collins’ father. Ms Curran had made no financial contribution to purchase. As such, if she were to obtain a share in the property, should would have needed to have demonstrated a common intention upon which she had detrimentally relied, [2]. This common intention could, in appropriate cases, be inferred from the conduct of the parties in relation to the property, [2]. In this particular case, the Court concluded that no such intention could so be inferred, [3, ii], and that in any case there was no detrimental reliance, [3, iii]. However, some useful guidance was given as to two key issues. Firstly, the Court makes very clear the necessity of detrimental reliance. Secondly, the Court considers the role of subterfuge in the implication of a trust.

In relation to this first issue, the Court could not be more plain, notwithstanding the failure of the Supreme Court in Stack to make apparent the necessity of detrimental reliance on the common intention. Thus, as Lewison LJ reasons: 

Overarching all these points is a lack of detrimental reliance. The need for detrimental reliance on the part of the claimant is an essential feature of this kind of case.
— Collins v Curran, [77].

This question mark from Stack, if it still remained, can be conclusively removed.

More important is the Court’s analysis of the role of subterfuge and white lies in the common intention constructive trust. In this case, Mr Collins had told Ms Curran that he would not put her onto the title of the property because this would necessitate the purchase of two life insurance policies. The Court refers to this as, “the Excuse”, and it inevitably recalls to mind the facts in both Eves v Eves [1975] 1 WLR 1338 and Grant v Edwards [1986] Ch 638 where reasons were given to one party by the other as to why they should not be on the title. The Court of Appeal is very clear in Curran v Collins that it sees this comment by Mr Collins as being one designed only to spare Ms Curran’s feelings, and that, as such, it could not justify a finding that there was a common intention as to a trust, [69].

Lewison LJ provides extensive analysis as to how the white lie affects the common intention constrictive trust by comparing this case with Eves and Grant v Edwards. In relation to the former, he distinguished the excuse in Eves (which was found sufficient to give rise to a trust), on the basis that in that case Mr Eves had told his Mrs Eves that the house was to be  a home for them both at the time of purchase: that was not the case for “the Haven” which was bought in 2007, cohabitation commencing in 2010. Secondly, in Eves, the “excuse”, contained a “positive assertion that it would have been bought in joint names” [71] as opposed to in Curran where, “she was simply told that she could not be on the deeds because it was too expensive” [71].

In distinguishing the approach in Grant v Edrwards, Lewison LJ relies on the fact that again, at the time of purchase, there was cohabitation, and children. 

Again there are two factors present in that case which are absent from ours. First, in that case (but not in ours) the house being acquired was acquired as a family home. Second, in that case (but not in ours) there was a positive representation that Mrs Grant would have been a joint owner but for her matrimonial dispute.
— Curran v Collins, [73].

Thus we can conclude that co-habitation at the time of purchase, and the existence of a positive representation are relevant to the power of the white lie to generate a common intention constructive trust. The mere presence of a white lie/ subterfuge does not, in itself, give rise to any inference of the trust, [74]. This guidance is useful in highlighting why the lies in Eves and Grant v Edwards were sufficient to establish a common intention (where, in fact, they were evidence of the precise reverse).

This decision is useful in clarifying these two issues, and helps in further building up a picture as to how the common intention constructive trust is indeed constructed. One notable oddity of the case, however, is that the court places very scant reliance, at least openly, on the decisions in Stack and Jones. Indeed, Arden LJ does not mention Stack at all, and only makes a passing reference to Jones v Kernott in highlighting the need for objectivity. We saw this approach from her Ladyship in Gallarotti v Sebastianelli [2012] EWCA Civ 865 also. Whilst Lewison LJ is much more clearly relying on these higher authorities, it is surprising that there is so little discussion of the other Court of Appeal decisions highlighting that Stack/ Kernott apply to the sole names case mentioned above. Perhaps we should see this as a sign that the matter is now, beyond doubt, closed. 

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