Nelson v Nelson & Ors

Where a claimant asserts that a property registered in the name of an existing person was acquired under an alias, the claimant bears the burden of proving that the registered name referred to him. The issue may be resolved from documentary evidence and inherent probabilities where witness evidence is unreliable. Evidence about the source of purchase money is not necessarily determinative of legal title. A declaration acknowledging agreement to use the registered name, together with a power of attorney or affidavit treating the named person as owner, may support the inference that legal title was intended to vest in that person. On an application for permission to appeal against factual findings, permission should be refused where there is no real prospect of a different conclusion on review. A possible trust or beneficial arrangement not put before the trial judge is not determined.

The claimant sought permission to appeal from an order of Mr D Donaldson QC, sitting as a deputy judge of the Chancery Division, dated 25 July 2001. The judge had dismissed his claim and ordered him to pay costs.

The dispute concerned the ownership of 18 Arundel Gardens and the proceeds of its sale. The property had been registered in the name of Joseph St Rose, the claimant’s half-brother, and later transferred to the third defendant. The claimant contended that Joseph St Rose was an alias which he had used to acquire the property and that he was entitled to the sale proceeds. The central issue was whether the registered name referred to the claimant or to the second defendant.

Permission to appeal was refused.

1. The claimant bore the burden of establishing that the name Joseph St Rose in the transfer and Land Registry entry referred to him, rather than to the existing individual who bore that name. The first-instance judge was entitled to assess the unreliable testimony, consider the documentary evidence and draw conclusions from the inherent probabilities.

2. The judge’s reasoning was not contradictory. The claimant had previously used artificial aliases but had chosen, for this transaction, the name of a known and existing person. His inability to explain that choice supported the inference that he intended something other than an alias. His declaration that he had contacted his brother and agreed with him to use the name also supported the conclusion that the legal title was intended to vest in the brother.

3. The source of the purchase money did not determine the identity of the legal owner. Even if the second defendant had no financial interest in the purchase, the claimant’s tax difficulties could explain why the property was placed in his brother’s name. The power of attorney and accompanying affidavit, which described the second defendant as the legal and beneficial owner, were consistent with that conclusion. The claimant’s production of those documents, while alleging that they were fraudulent without explanation, further weakened his case.

4. The court did not determine whether the second defendant might have held the property on trust for the claimant. That internal arrangement had not been the issue put before the judge, whose decision concerned only legal and registered ownership.

5. This was a challenge to a factual determination made after hearing the evidence and considering the documents. There was no real prospect that the Court of Appeal, on review, would reach a different conclusion. Permission was therefore refused, and the order below remained in force.

• Court of Appeal (Civil Division): On 29 November 2001, Lord Justice Aldous refused permission to appeal, holding that there was no real prospect of a different conclusion on the facts.
• Chancery Division: Mr D Donaldson QC, sitting as a deputy judge, made an order dated 25 July 2001 dismissing the claim and ordering the claimant to pay costs.