Kennedy v Booton

A party cannot establish a donatio mortis causa of land merely by proving delivery of a box said to contain title documents. The essential indicia of title must themselves have been delivered, and the evidence must show that they were in the box. An unpleaded claim, supported by limited evidence, is unlikely to provide a proper basis for appellate relief.

Findings of primary fact will rarely be disturbed on appeal unless shown to be against the weight of the evidence. The statutory protection for spent convictions does not require exclusion where the evidence is relevant and falls within the statutory exception, particularly where the party has introduced the matter in his own evidence.

Francis Kennedy, personal representative of Ellen Kennedy, claimed possession of a ground-floor flat against Leonard Keith Booton. Mr Booton counterclaimed for a declaration that he had an equitable interest in the property, relying on alleged contributions and a deed box which he said Mrs Kennedy had given him shortly before her death.

His Honour Judge Boggis dismissed the counterclaim, found that Mr Booton had no beneficial interest, and made an order for possession subject to agreed terms. Mr Booton applied for an extension of time, permission to appeal, permission to adduce fresh evidence consisting of keys and an envelope, and a stay of execution. The central issues were whether there was any real prospect of success concerning donatio mortis causa, and whether evidence of a spent conviction had wrongly been admitted.

The extension of time was allowed. Permission to appeal, permission to adduce fresh evidence and a stay of execution were refused.

1. Findings of fact. An appeal against primary findings of fact requires a showing that the findings were against the weight of the evidence. Mr Booton did not advance that case. The judge was entitled to prefer Mr Kennedy’s evidence about the contents of the deed box and had not relied materially on the earlier conviction in reaching that conclusion.
2. Donatio mortis causa. The requirements identified in Sen v Headley [1991] 2 All ER 638 are contemplation of death, a gift conditional on death, and delivery of the essential indicia of title. Delivery of the box alone could not suffice. Mr Booton had to establish that the box contained the title deeds, but the judge had found that it did not contain relevant papers and the title deeds were not shown to have been in Mrs Kennedy’s possession. The issue had not been pleaded and the evidence on it was limited.
3. Spent conviction. The effect of the Rehabilitation of Offenders Act 1974 was not to require exclusion of the evidence in the circumstances. Mr Booton had himself disclosed imprisonment in his witness statement, and the evidence was relevant to the history of his relationship with Mrs Kennedy. The question of exclusion had not arisen at trial, and the judge had not been bound to exclude the evidence. In any event, the judge’s reasoning on the disputed contents of the box rested on the comparative credibility of the witnesses and did not materially depend on the conviction.
4. The proposed fresh evidence had been available at trial and afforded no proper basis for appellate intervention.

• High Court, Chancery Division, Birmingham District Registry: His Honour Judge Boggis dismissed Mr Booton’s counterclaim, found that he had no beneficial interest in the property, and ordered possession subject to agreed terms.
• Court of Appeal (Civil Division): The extension of time was allowed, but permission to appeal, permission to adduce fresh evidence and a stay of execution were refused.