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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bradwell v Bradwell [2001] EWCA Civ 1710 (23 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1710.html Cite as: [2001] EWCA Civ 1710

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE BOWERS)

		Royal Courts of Justice The Strand London Tuesday 23 October 2001

Tuesday 23 October 2001

1. LORD JUSTICE LAWS: This is an application for permission to appeal against a decision of His Honour Judge Bowers which was made in the Middlesbrough County Court on 21 June 2000. There is also an application for permission to bring the appeal out of time.
2. The judge ordered that Mrs Edith Bradwell should by 31 July 2000 transfer to her daughter, Pamela Bradwell, a house in Oakley Green, West Aukland, Co Durham, so as to make Pamela the sole legal and beneficial owner of the property.
3. The property had been a council house which was purchased under the "right to buy" legislation.
4. In bare summary the judge found facts as follows. In around 1989 Pamela's relationship with her then boyfriend broke down and she, along with her two daughters, went to live with her mother, Mrs Edith Bradwell. Mrs Bradwell lived in the property in question. After she had moved in, Pamela raised with Mrs Bradwell the question of the council house being purchased. Mrs Bradwell agreed. Pamela arranged an interest only mortgage with the Northern Rock in Mrs Bradwell's name. Mrs Bradwell took out an endowment policy on her life which would provide funds to repay the capital after ten years. The judge held (and I will return to this in a moment) that Pamela's account of exactly what was agreed between the parties in relation to the purchase of the house and what was intended thereafter was preferable to Mrs Bradwell's, whose evidence he described as "hopeless and unfortunately unreliable". The judge took the view that there was an agreement that the house would be purchased in Mrs Bradwell's name, but for Pamela. If the house had not been purchased by Mrs Bradwell, then the opportunity to buy it at the 60 per cent discount from the council would have been lost. Mrs Bradwell was the sitting tenant and under the statutory scheme she was the person entitled to the discount. The council imposed a period during which the property could not be sold on, save at a penalty, but the judge held that the intention was to transfer the property to Pamela at the first convenient time.
5. Those are the judge's conclusions in bare outline. At page 4 of his judgment he said:

"The dispute which arises in this case is as to what agreements or arrangements were made between the parties at the time of the purchase of the council house. That depends in my judgment entirely upon the credibility of the witnesses and effectively which of the two, the applicant, or the respondent, I believe.

Pamela says that there was an agreement that not only would she continue to live there at her home with her mother .... and children, and share the outgoings, but that she would be responsible for the payment of the endowment policy payments; that she and [Mrs Bradwell] would pay the interest to the Northern Rock building society; but that it was the expectation and intention of both of them that the house was to belong to her [Pamela], subject to [Mrs Bradwell's] right to live there as long as she was able to live there....

[Mrs Bradwell] agrees the general sort of arrangement now although throughout the proceedings she has denied that there was any responsibility on her and denied that her daughter was paying the endowment policy payments. She says that she paid all the payments to the Northern Rock, and not [Pamela], but she says that the arrangement that her daughter was to get the property was not an agreement: that there was certainly no question of transfer to her daughter once the claw back date had expired, but that it was more a general expression of hope that in her will, after her death, this house would belong to Pamela. That was the basis upon which she put forward her case."

6. As the judge recorded at page 6, Pamela was evicted from the property at her mother's request on 4 July 1995. The judge also referred to a statement made by Mrs Bradwell on 31 July 1999 in which she said:

"I therefore decided against transferring my property into her name."

7. The judge took the view that that indicated there had been an earlier intention to make just such a transfer.
8. Today Mrs Bradwell, who is not well, has not appeared in court. Her son, James Bradwell, has, with my permission addressed me on her behalf and done so with great courtesy and moderation. However, having read very carefully the judgment, as well as the other papers, including the skeleton argument that has been put in, it is plain to me that the judge weighed up the evidence of the protagonists with great care. He canvassed a great many details about the case, which I have considered but will not repeat. Then at page 11 he said:

"Quite frankly [Mrs Bradwell's] evidence was hopeless. I much preferred Pamela's evidence. On any matters of conflict I would prefer Pamela's account. [Mrs Bradwell's] evidence was unfortunately unreliable. I accept there may be some difficulties in recollection, but I do think a lot of it has been tainted by the bitterness that has ensured over the past five years, due to the family feud. It was noticeable that some of the phrases she used, some of the attitudes she evinced, were echoed by her son, Jim [who appears before me today], when he gave evidence. I am quite satisfied, therefore, that there was an agreement; that the way forward was to purchase this house, in mother's name, for the daughter, at a very satisfactory price, because she was the only member of the family without a home. If they did not buy it in that way that 60% reduction in price would simply go begging and the council would then be able to re-let the property after mother's death (or, if here daughter was still living there, she would have the right probably to carry on with the tenancy). But the whole point being that the only way this benefit could be unlocked for the benefit of the family, and Pamela, was to enable the purchase. I am quite satisfied that the intention was at that time to transfer the property to her at the first convenient time after the claw back had finished."

9. From those facts the judge arrived at these conclusions. First, he held that there was a constructive trust in the circumstances in Pamela's favour, and indeed a propriety estoppel also. Those sprung from the common agreement and intention which he found had arisen. Secondly, he held that Pamela acted to her detriment by her conduct in her very substantial contributions in money in particular. Thirdly, he held that in the circumstances of the case the constructive trust required either a declaration that Mrs Bradwell held the property on trust for Pamela absolutely, or an order for the transfer of the house to Pamela, subject to Mrs Bradwell's right to occupy. As I have said, he made the order for the transfer.
10. In the course of his judgment the judge dismissed an argument that Mrs Bradwell should in some way receive credit for the fact that it was only through her position that the purchase of the property from the council could be made at a 60 per cent discount.
11. The particulars of the grounds of appeal may be summarised as follows: first, that the judge was wrong because he did not refer to all the evidence; secondly, that his decision was unjust because he permitted Mrs Bradwell to be cross-examined over two days and (as it is put) it was "disgraceful" for him to label her evidence as "hopeless"; thirdly, that the case was mismanaged because Judge Bowers stopped the case and then started it again, and that called into question his own power of concentration. It is not entirely clear to me what is meant by that, but it is a complaint about the procedures adopted.
12. However, the grounds of appeal are much amplified by a skeleton argument which I have read carefully. I am not going to read it out. Most of it is taken up with complaints about the judge's approach to the facts. The point as to the 60 per cent is then resurrected. But as regards that, the judge found in terms that there was an agreement to transfer the property. Lastly, various points are made as to the procedures adopted at the trial.
13. Before me this morning, Mr Bradwell says that he relies on the whole of his skeleton argument, and I understand that. He has helpfully isolated one or two points which he regards perhaps as being of particular importance. First of all, he showed me the mortgage application form which, he said, gave false details in certain particulars about Pamela. One was as to her date of birth. He submits that the judge, in finding her income as did find it, must have followed this document, yet should not have done so because it is a false document. The other lie (as he would put it) in the document was as to the duration of her residence in the property. That is one matter on which he relies. Another is a point of detail: whereas Pamela, in her evidence, as I understand it, said that she worked in the evening, there is material from her employer saying that she worked in the afternoon.
14. I quite understand that Mr Bradwell will be disappointed by this result, but it is my duty to conclude that there is simply not enough here to upset the judge's decision. As I said to him in the course of argument, the judge heard the witnesses. I have already read the passage from his judgment in which he held that the whole case turned on which of the two ladies was telling the truth. I do not know how far these detailed points and other points in the skeleton upon which Mr Bradwell relies today were emphasised or put in the course of the trial. Mr Bradwell says that his mother was not very well represented. That may or may not be so, but that was the time at which these points fell to be taken.
15. In the end, whatever is made of the points about the documents, the judge formed the clearest possible view as to which of the witnesses was the more reliable. I understand Mr Bradwell's distress at his mother's evidence being called "hopeless". Perhaps more moderate language might have been used. The important point for my purposes is, however, that the judge was entitled to accept Pamela's evidence and to reject Mrs Bradwell's.
16. For all those reasons I am afraid this application is doomed to failure. There is nothing in the procedural points that would get the case on its feet. In those circumstances it is my duty to refuse the application, and I do so.