Barnes v Phillips [2015] EWCA Civ 1056

1st June 2015

Mark Jones acted for the successful Respondent in the Court of Appeal in this trusts of land case concerned with when and in what circumstances it might be permissible to conclude, absent an express agreement, that the beneficial shares of unmarried co-owners of property should be varied.

The Court of Appeal, interpreting the earlier judgment of the Supreme Court in Jones v Kernott [2012] 1 AC 776, held that in considering whether co-owners could be held to have agreed to vary their beneficial shares, there is a two-stage test. First, whether an agreement to vary could be discerned (question 1), and second, if so, what the quantification of the parties’ shares following such an agreement should be (question 2).

In considering question 1, an express agreement, or an inferential finding of an agreement would suffice, but not an agreement imputed to the parties by the Court.

If the hurdle of question 1 could be surmounted, in considering question 2 the Court has the additional tool of imputing to the parties a common intention that they may never actually have held as to proportions.

The other novel feature of the case was confirmation that in certain circumstances the Court will be prepared to take into account contributions to the maintenance of children (or the absence of such contributions) in the consideration of the parties’ beneficial shares:

'in principle, it should be open to a court to take account of financial contributions to the maintenance of children (or lack of them) as part of the financial history of the parties save in circumstances where it is clear that to do so would result in double liability.' (para [41])

A more detailed analysis of the case will follow shortly.

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