Edwin Johnson J. TLATA judgment setting out the circumstances in which a new claim can be pursued on appeal, the law regarding the ‘release’ of one’s beneficial interest in property to another joint tenant, and the differences between release and assignment. The court referred extensively to Hudson v Hathway [2022] EWCA Civ 1648.

Relevant factual background

This matter concerned a property (‘the Property’) in which the parties had co-habited as a couple. The Property was purchased by the appellant and her then-husband in 2006, who declared by the relevant form that they were beneficial tenants in common in equal shares. In 2013, following the appellant’s and her then-husband’s separation, the Property was transferred by the appellant and her then-husband to the appellant and the appellant’s sister by way of a transfer form in which the appellant and her sister declared that they held the Property as beneficial joint tenants.

The appellant and the respondent later began a relationship and in 2018 a further transfer took place in which the Property was transferred by the appellant and her sister by way of a transfer form in which the appellant and the respondent declared that they held the Property as beneficial joint tenants.

The parties’ relationship began to break down from 2018. In 2020, the respondent was convicted for assaulting the applicant and the applicant obtained a non-molestation order and occupation order against the respondent.

Background to proceedings

Between 31 May 2021 and 12 June 2021, the parties sent a series of emails to each other regarding the Property. The respondent was seeking to reconcile with the applicant; the applicant was seeking that the respondent remove himself from the mortgage. The emails are set out at [17]–[29]. The respondent’s case was that he agreed to remove himself from the mortgage on the basis that the appellant would then reconcile with him, and when he found out that she would not reconcile with him, he retracted his consent. His emails included:

• ‘I don’t want the house it’s yours it’s always been yours! … I hate that house I want nothing to do with it. I wish you sell it and get a new place…’ (9 June 2021, 23:07);
• Then: ‘I give my full consent to be removed of the mortgage at 41 Newbury avenue EN36EF… Not seeking any financial interest in the property ...’ (10 June 2021, 15:34);
• Then: ‘I retract my consent from removing my name of the mortgage and seek Financial interest in the property …’ (12 June 2021, 23:15).

The appellant’s case at first instance

On 22 November 2022, the appellant was the claimant at first instance. She claimed that it was the parties’ common intention that the respondent should not have/retain any beneficial interest in the Property; and that any beneficial interest that the respondent might have in the property was held on resulting trust for the appellant. There were further claims for unjust enrichment and personal injury, which did not concern the appellate court. The respondent’s case was that the parties held the Property as beneficial joint tenants, as had been agreed by the parties when the Property had been transferred in 2018.

The trial was three days long (the first two days being when evidence was heard). The first instance judge found that, given the express declaration of trust, and there having been no severance, the parties held the Property on trust as beneficial joint tenants. The declaration of trust was binding, so the common intention argument (and necessarily, the resulting trust argument) failed. The judge determined that the Property should be sold, and made an order for sale.

The appellate judge referenced the transcript of the first instance trial as well as the judgment. The only references to the email exchange were brief and raised in connection with the argument that the respondent knew that he had never had an interest in the Property (not whether he had released that interest). The principal focus of the oral evidence had been the question of whether the parties had been in a committed relationship when they entered into the 2018 transfer, whether they had been living together in the Property at that time, and their intention or otherwise that the Property be their home. In his judgment, the first instance judge found that the emails sent by the respondent did not represent a recognition on his part that he had no beneficial interest in the property.

The appellant’s case on appeal

On appeal, the appellant argued that, by way of the emails, the respondent had released his beneficial interest in the Property to the appellant, the emails having satisfied the requirement for signed writing in s 53(1) Law of Property Act 1925 (‘s 53’). The appellant relied on the court’s decision in Hudson v Hathway [2022] EWCA Civ 1648 (‘Hudson’) in arguing both that: (i) the new claim (‘the Release Claim’) could be pursued; and that (ii) the emails constituted the release of the respondent’s interest.

In Hudson, Lewison LJ had determined that the new claim of release could be raised on appeal since the case could be distinguished from other cases in that the defendant was seeking to raise the new point as part of her defence of the two previous judgments in her favour, and further evidence would not have needed to have been called at trial had that point been taken, as the release claim point was a ‘pure point of law’. In that case, the appeal was dismissed and the appellant was found to have released his beneficial interest in the property.

Edwin Johnson J declined to permit the appellant to pursue the Release Claim in the appeal. The judge referred to Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376 at [15]–[18]:

• an appellate court will be cautious to allow a new point to be raised at appeal;
• a new point will generally not be allowed to be pursued at appeal if it would necessitate new evidence or would have resulted in the trial in the court below having been conducted differently, had it been raised then; and
• even where a point may constitute a ‘pure point of law’, three criteria must be satisfied: (i) the other party has had adequate time to deal with the point; (ii) the other party has not acted to their detriment on the faith of the earlier failure to raise that point; and (iii) the other party can be adequately protected in costs.

The court also referenced Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, in which it was established at [26]–[28] that a case need not be exceptional for a new point to be raised on appeal, and that there is a spectrum. At one end are the cases in which a new point raised on appeal would have changed the course of evidence given at trial, and/or require further factual inquiry; at the other end are those cases where the point being sought to be pursued is a ‘pure point of law’.

In this matter, Edwin Johnson J concluded that the case fell on the former end of the spectrum, and that there were differences between this case and Hudson sufficient to distinguish the two. In Hudson, the email communications between the parties had been the subject of findings by the trial judge, unlike in this case. The email communications in Hudson had been examined specifically for the judge to determine whether they constituted an agreement between the parties that the defendant was to have the entire beneficial interest, unlike in this case. Hence, in Hudson, at appeal, the Court of Appeal only had to read those emails and decide upon their effect. There was no need for further investigation of the factual context of those emails.

By contrast, in this case, the emails had not been examined at first instance. To the extent that they had been referenced, they had not been referenced for the purpose of determining any Release Claim. In this matter, the examination of the emails could not constitute a ‘pure point of law’. In this case, with reference to case-law on contractual interpretation, the court determined that an exploration of the factual context to the exchange of emails would be necessary to construe their meaning – and therefore, exploration of the issue would necessitate further factual investigation, and would have changed considerably the course of the trial at first instance.

Further differences between this case and Hudson included: the content of the emails exchanged between the parties (those in Hudson being much clearer so the parties’ intentions could more easily be discerned); the fact that it was the appellant in this matter purporting to raise a new claim, whereas it had been the defendant in whose favour the two previous hearings had been decided. In this case, to allow the Release Claim would necessitate the remission of the matter to a county court to be specifically pleaded, causing delay and cost, and allowing the appellant what was effectively a second bite of the cherry.

Given the court’s conclusion on the matter of the Release Claim, the court declined to consider whether the emails did constitute an effective disposition, by release, of the respondent’s beneficial interest in the Property, to the appellant.