Holman v Howes

On a renewed application for permission to appeal, permission is appropriate where the proposed ground cannot be said to have no real prospect of success and raises an arguable case. A beneficial-ownership appeal raised an arguable question whether, when shares are quantified under Gissing v Gissing principles, the court must consider the parties’ whole course of dealings, including dealings after completion. The court doubted that post-completion dealings necessarily had to be considered, given the general rule concerning expenditure referable to acquisition. A proprietary-estoppel ground which might not alone justify permission could nevertheless be included once permission was granted on the beneficial-ownership ground.

The claimant and her former husband lived in a house acquired in 1979–1980. The property was registered solely in the defendant’s name. After a five-day trial, Mr Alan Steinfeld QC, sitting as a deputy High Court judge in the Chancery Division, held that the defendant held the property on trust for both parties in equal shares under Gissing v Gissing principles. He also declared that the claimant was exclusively entitled to occupy it while it remained unsold and refused immediate sale.

The judge refused the claimant permission to appeal. Carnwath LJ subsequently refused permission on the documents. On renewal, the claimant relied on proprietary estoppel and argued that the lower court had failed to consider the parties’ whole course of dealings, including post-completion dealings, when quantifying their beneficial shares.

1. Permission to appeal. Sir Martin Nourse held that the proposed Gissing v Gissing ground could not be said to have no real prospect of success. The claimant had raised an arguable case. Permission was therefore granted on that ground.
2. Beneficial ownership. The lower judge had referred to the parties’ dealings and their apparent indifference to the precise extent of their respective contributions. The claimant argued that this analysis was confined to contributions made towards acquisition and omitted later dealings. The proposed appeal therefore raised the question whether the whole course of dealings, including arrangements concerning outgoings after completion, had to be considered in quantifying the parties’ shares.
3. Chadwick LJ’s statement in Oxley v Hiscock [2005] Fam 211 included arrangements for mortgage contributions, council tax, utilities, repairs, insurance and housekeeping. However, bearing in mind the general rule identified by Fox LJ in Burns v Burns [1984] 1 Ch 317 that the court looks for expenditure referable to acquisition, Sir Martin Nourse doubted whether the post-completion dealings relied on necessarily had to be taken into account. The substantive issue was left open.
4. Proprietary estoppel. The court doubted that this ground alone would justify permission. Once permission had been granted on the Gissing point, however, it was not right to restrict permission to that issue. Permission was extended to the proprietary-estoppel ground. Lord Justice Dyson agreed. Order: application granted.

1. Court of Appeal (Civil Division): On renewal of the application, permission to appeal was granted on the beneficial-ownership and proprietary-estoppel grounds.
2. Chancery Division: Mr Alan Steinfeld QC, sitting as a deputy High Court judge, declared that the defendant held the property for the parties in equal beneficial shares, subject to the claimant’s exclusive occupation, and refused immediate sale. He refused the claimant permission to appeal.
3. Permission review: Carnwath LJ refused permission to appeal on consideration of the documents.