Kay v Mills

Possession proceedings — Proprietary estoppel — Whether abuse of process to raise proprietary estoppel claim whenasserted in previous proceedings that no beneficial interest aroseether unresolved issue as whether appellant having irrevocable licence to occupy — Appeal allowed The appellant and her family lived in a house that had been purchased in the joint names of her and the respondent, her father. The purchase had been financed by a deposit supplied by the respondent together with a mortgage in joint names, which was also paid by the respondent. A trust deed executed at the time of purchase stated that the property was held on trust for the respondent in fee simple and was to be conveyed to him at his direction. In proceedings against the appellant for a charging order against the property, both parties maintained that the appellant had no beneficial interest in the house, and never would. The judge dismissed the claim for a charging order on the basis of that evidence. The respondent subsequently brought proceedings against the appellant seeking possession of the house and a declaration that it was held on the trusts set out in the trust deed. The appellant, by her defence and counterclaim, argued that she had a right to remain in the property on the basis of proprietary estoppel. She cited a verbal agreement entered into at the time of purchase and applied also to rely upon evidence of assurances, made by the respondent since the charging order proceedings, to the effect that she and her children would have a home for as long as they required. The judge struck out the defence and dismissed the counterclaim as being an abuse of process, on the ground that it was inconsistent with her case in the earlier proceedings, where it was agreed that she had no beneficial interest. On appeal against that decision, the appellant argued that an issue remained as to whether she had an irrevocable licence to occupy for as long as she required, a possibility that had not arisen in the charging order proceedings and that was consistent with her submissions in those proceedings. The respondent argued that the appellant should not be able to advance that case in the absence of any explanation as to why she had not raised the matter in the earlier proceedings. He further submitted that she should not be permitted to rely, in support of that case, upon matters that had occurred before the date of those proceedings. Held: The appeal was allowed. The appellant was not required to explain why she had not raised the matter of an irrevocable licence in the charging order proceedings. She had not been obliged to raise any such arrangement in those proceedings, and raising it now did not amount to an abuse of process. The fact that she could have raised the point previously did not mean that she should have done so: Johnson v Gore Wood & Co [2002] 2 AC 1 applied. It was not an abuse of process for the appellant to seek access to the courts for the determination of an issue that had not already been adjudicated. The claim that the appellant sought to advance was not inconsistent with the contention that she had no beneficial interest. For similar reasons, the appellant was not debarred from relying, in support of that claim, upon matters that had arisen prior to the charging order proceedings. The court might need to hear evidence of the arrangements at the date of purchase in order properly to interpret the subsequent assurances. Elizabeth Darlington (instructed by Glandfield & Cruddas, of Uttoxeter) appeared for the appellant; Soofi Din (instructed by Wilkins & Thompson, of Uttoxeter) appeared for the respondent. Sally Dobson, barrister