Worsdell v Golledge & Anor

On an application for permission to appeal, the Court of Appeal will not retry factual disputes or reassess witness credibility. A trial judge’s apportionment of beneficial ownership should stand where it was open on the evidence and involved no material legal error. Contributions to purchase price and improvement works may support a finding of common intention to confer a larger beneficial share, but they do not themselves establish sole ownership. A consent costs order may carry an implied limitation: it does not ordinarily require an estate to bear costs unreasonably incurred after rejection of a well-judged Part 36 offer.

Gordon Worsdell sought permission to appeal from an order made after a two-day trial by His Honour Judge Milwyn Jarman QC, sitting as a High Court Judge in the Chancery Division. The dispute concerned the beneficial ownership of a house formerly owned legally by Gordon’s parents. The judge declared that Gordon had a 60% beneficial share and that his sisters, Glenys Golledge and Elaine Dally, each had 20%. He also set aside agreements made in 2002, dismissed a related claim by Gordon’s former wife, and made costs orders following the expiry of the sisters’ Part 36 offer.

The central issues were whether Gordon had established an entitlement to the whole house, whether payments made under the set-aside agreements required repayment, and whether the consent order governing estate-funded costs continued to apply after the rejected offer.

1. Permission and beneficial ownership. Permission to appeal was refused. The presumption on the 1989 purchase was that Gordon’s parents, who acquired the house in their joint names without an express beneficial declaration, held it in equal beneficial shares. Stack v Dowden [2007] 2 AC 432 did not support a different approach.
2. The judge was entitled to find that Gordon’s payment towards the purchase price and his improvement works evidenced a common intention that he should receive a share larger than one third, but not at least one half or the whole property. The judge’s assessment of the evidence, including the sisters’ concession and the inconsistent 2002 agreements, fixed that additional share at 40%. Gordon then inherited 20% of the remaining 60% under Caroline’s intestacy, producing the declared 60% share. There was no real prospect that the Court of Appeal would reach a different percentage.
3. Repayment and equitable accounting. The judge was entitled to reject the asserted regular payments, regard such payments as no more than the benefit of occupation, and decline to order repayment or recognise a further equitable interest. His assessment depended on the reliability of the witnesses and could not properly be second-guessed on a permission application.
4. New evidence and factual reassessment. The Court of Appeal would not consider documents not placed before the trial judge where they could have been produced at trial. Nor did disagreement with findings of fact, unsupported assertions, annotations to the judgment, or an attempt to present a retrial establish an arguable ground of appeal. The purported will was also invalid for want of proper execution and had not been put before the trial judge.
5. Costs. The 2007 consent order prima facie covered costs properly and reasonably incurred in the permitted proceedings. As a matter of business efficacy, it contained an implied limitation against unreasonable expenditure. The judge was entitled to treat costs incurred after Gordon rejected the sisters’ well-judged Part 36 offer as unreasonably incurred and outside the consent order. In any event, the absence of a transcript of the costs judgment prevented a conclusion that the costs decision was arguably wrong.
6. The application for permission to appeal was refused on all grounds.

• Court of Appeal (Civil Division): Arden LJ refused permission to appeal on the papers on 27 October 2010. On renewal, Rimer LJ refused permission to appeal on all grounds on 7 April 2011.
• High Court of Justice, Chancery Division, Cardiff District Registry: His Honour Judge Milwyn Jarman QC, sitting as a High Court Judge, after a two-day trial on 5 and 6 July 2010, declared the beneficial shares in the house to be 60% for Gordon and 40% for the sisters collectively, set aside the 2002 agreements, and made the relevant possession and costs orders.