IN THE CENTRAL LONDON COUNTY COURT
13-14 Park Crescent
Tuesday, 16th April 2002
Before:
HIS HONOUR JUDGE COWELL
B E T W E E N:
LEBENS
Claimant
- and -
LEBENS
Defendants
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THE CLAIMANT appeared in person.
MR. M. HARDWICK appeared on behalf of the Defendants.
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JUDGMENT
JUDGE COWELL
This is a particularly sad bit of litigation. I am quite certain that over the years this litigation and other litigation has been an enormous strain on the claimant, Mrs. Lebens. I am very pleased to see that she has been accompanied in court by a good friend of hers who has known her for many years and has spoken on her behalf.
It so happens that the defendants have fought every point and that has not helped relationships between the parties. Indeed, they even suggested at one stage that there was not a proper or valid marriage between the claimant and Ralph Lebens, who I shall refer to as "the deceased".
It is perfectly clear in law that there was a marriage. The fact that there is a decree nisi and a decree absolute really precludes any question in any other court, other than the divorce court, about the validity of the marriage. That is one factor which illustrates how and why feelings between the parties are very hard indeed.
The other matter which has appalled the defendants, it is right to point out, is that when the mortgagee of the property obtained a possession order, the claimant resumed possession, quite unlawfully, on no fewer than seven occasions. She told me that she believes (and I am sure she does) that the defendants gave the mortgage company the authority to evict her, though, as all people in the law know, the building society acts in its own interest and needed no authority from the defendants even though, on one occasion, they did consent to possession being taken.
So there it is. I only make those preliminary observations to explain that feelings between the parties have run very high and this has been a difficult case to deal with.
What I have to decide is a comparatively short point. That is whether the claimant has what is called a beneficial interest in the property. The property is Flat 14, Blake House, 82 Chariwood Street, Pimlico, London. What is not in dispute is that in December 1984 the claimant met, for the first time, the deceased. They each had two children. The claimant's children were Marcus (born in May 1975) and Gigi (born in March 1979).
The deceased had only just become divorced from his first wife, and he was concerned to enjoy access to his two sons, who are in fact the defendant administrators.
At that time the claimant and the deceased both were Rastafarians. They shared that in common. It was a very important part of their respective lives. In background, they were very different, apart from the fact that they had both lived for some time in Jamaica, in their youths. The claimant came from Jamaica and is black. The deceased came from a very highly educated Jewish family.
They became married to each other on 28th February 1985. The claimant told me, very frankly and I have no hesitation in accepting this, that from the beginning "we had our doubts" because of the mixed nature of the marriage. They each had two children from a former marriage. So it was a marriage which sadly did not last.
It is probably not necessary to say much about the length of the marriage or the reasons why it did not last. It so happened that the deceased kept a diary. There is much in the diary that reflects his Rastafarian faith and his beliefs in the twelve tribes, and matters like that. It is clear that when the claimant and the deceased met the deceased's parents, they were anxious that they should consider the matter for a year or so. But in fact they decided that they would get married and they did.
Within a few months the deceased was clearly troubled as to whether he had "sinned against the Lord", to quote from his diary. There is mention of living apart in the diary for May 1985. He was obviously concerned to see his two children. I think that I am right in saying that his former wife was not happy about the children going to the property.
By October 1985 he went to Israel for a year. That founded the divorce petition for desertion in October 1985 that the claimant presented to the court. That resulted, in due course, in the decree nisi in August 1991 and the decree absolute in September 1991.
The property, Flat 14. There was an exchange of contracts in February 1985. It is not entirely clear on the evidence whether the property cost £58,000 or £52,000. Completion took place on 28th March, which was exactly a month after the marriage. It is clear that the Halifax Building Society lent £30,000 on mortgage in the usual way.
What is quite clear is that the rest of the purchase money, whatever the total purchase price was, was paid for by the deceased. He was a talented architect and was, at about this time, renovating another property in the Kentish Town area in Gloucester Avenue. It seems that by this stage he was not the successful professional that he had been. The people he employed at the Kentish Town property probably took advantage of him. That property was sold. I do not think he made any profit out of it. By the time the sale of that property took place the mortgage on Flat 14 was in arrears.
So the hopes of them both were dashed. As the claimant told me: if we had been successful, we would have bought a larger house with room for all four children. But sadly that never happened.
After he left, the mortgage was paid every now and then. The full details are to be found in the Halifax account at p.246. There are two large sums of over £1,000 which were paid. I accept the claimant's evidence that one such payment came from a student grant and another came from a hardship fund of the Students' Union.
By the end of 1985, whatever few payments had been made by the deceased himself of those payments at p.246, neither the deceased nor anybody on the defendants' part were making any payments. The claimant earned for about nine months from November 1985, when she got a job, to about the end of the following summer. She earned £50 a week and did her best to pay the mortgage. She also had two children's allowance from time to time.
Put shortly, she worked when she could, and had the help of the two lump sums I have mentioned, and she also had assistance from the DHSS. I do not think the details of it matter. It may be impossible now, in the absence of records, to make any particular findings as to how those payments were made.
On 17th August 1986 it is quite clear from p.386 that the deceased intended to transfer the property to the claimant. That intention to transfer is referred to in a letter which the deceased wrote some years later, on 16th May 1990, to solicitors when he had received the divorce petition. He said that he was not intending to defend the proceedings. He also said:
I agree to transfer the property, but I have absolutely no money at the moment to do anything more than buy stamps to mail this letter. Please continue with these matters at your end.
So it seems to me that he clearly intended to transfer the property. He made application to that effect on 17th August 1986.
The trouble is that it needed the consent of the Halifax. They did not give it, which is understandable, because the claimant, although she was working now and then, was about to give up the nine month job that I referred to. In any event, they did not consent to the transfer.
Then there was the divorce petition on 4th April 1989, based upon the desertion. It was, I think, on 4th March 1991 that the Halifax Building Society obtained a suspended order for possession.
By 23rd February 1994 one finds a doctor's medical report on the deceased. Clearly, he was suffering from delusions by that stage. But that is a long way after 1985.
In the divorce proceedings there was an application for the usual property transfer order, but that was opposed on behalf of the deceased by evidence put in by the deceased's father, Hugh Geoffrey Lebens, and by the Official Solicitor. They swore affidavits in March and April 1994. Before that matter could be determined by any divorce court, the deceased died in a fire in America on 30th December 1994.
Letters of administration, I understand though I have not seen them, I think were granted to the deceased's children's mother during the minority of the defendants. At any rate, there is in the evidence reference to a grant of 13th July 1995. That is important when I come to mention the Inheritance Act claim.
The defendants to this action, having obtained their majority, obtained letters of administration on 30th July 1996. On 7th August 1996 the claimant made an application under the Inheritance Act. The reason it was outside the usual six months period must be because of the grant in July 1995.
At about this time the claimant was putting in a defence in the Halifax possession proceedings alleging some kind of overriding interest which, in the light of the House of Lords decision in Abbey National v. Cann, was quite unfounded as a defence. This action was started on 22nd October 1996, though it was not progressed for many years for a reason I will come to in a moment.
On 21st January 1997 District Judge Hassan of this court refused the claimant's application to make the Inheritance Act proceedings out of time. I have to say that I have some sympathy for the claimant because it may be that had she made the application in time she might have recovered something. At any rate, that application was refused.
The sad history of this case continues with an ongoing battle between the Halifax and the claimant to obtain possession. At one stage a suspended order of committal to prison was made in December 2000. It was not until 22nd December 2000 that the Halifax Building Society sold the property for £189,000. But the surplus available, because of the vast amount of costs that they had incurred and were entitled to deduct from the proceeds, was the comparatively small sum of £47,567.95.
The claimant started an action in the High Court, but because it covered very much the same ground as this action which she started in October 1996, the Chancery Master in the High Court brought that action to an end and advised the claimant to go back to this court and effectively to revive the 1996 action. That she did by a statement in support of an application of 14th May 2001. So it comes about that the matter comes before me.
The claim for a beneficial interest is put on the basis that it arises by way of constructive trust. The claimant also sought a declaration that the claimant was entitled, as against the defendants, to remain living at Flat 14 for as long as she required it as a home for herself and/or for her children. When that claim was made the Halifax had not taken possession, but now that it has and the property has been sold, that claim effectively was defeated. So I do not have to consider what rights she may have acquired to remain in the property as against her one-time husband and now the defendants.
What I have to decide is whether she is, as she claims, the sole beneficial owner of the property.
The claim is probably most clearly put, and it is the closest in time to the events that I am concerned with, in her application in the Inheritance Act proceedings. In para. 6 pp.313-314 she said:
We decided to get married quite soon after we met. The deceased no longer wanted to leave the United Kingdom but to settle down with me in this country. We decided to find a property that we could live in together. It was meeting me that made him buy the flat. It was very difficult for me to leave my council property because Blake House was small for Ralph, myself and my two children and his two Sons who occasionally visited on weekends.
He persuaded me to leave my council accommodation in which I was living and I agreed. He had some capital from his previous business and the business he was running at the time. He used that as part of the deposit on the flat. He applied for a mortgage from the Halifax Building Society to purchase the flat.
We discussed this application together and the deceased asked me if I would be a party to the mortgage. I declined because I felt that entering into a marriage with Ralph was sufficient and felt that my name was not needed on the mortgage because we were going to be married and the property would automatically belong to us.
We both intended that the flat would be a home for both of us and our children, and that the true underlying ownership would be jointly between us. Obviously, we were not contemplating the effect of any such discussions on legal proceedings many years in the future, but I can categorically say that it was our joint intention that this flat was to be our joint home belonging to both of us.
A court has to be very careful about two things. One is that this is a claim which is made against, effectively, the estate of a deceased person. The deceased person is not here to comment on any of the evidence. So one has to be very cautious when dealing with the evidence of the survivor. The other matter is that when one is dealing with a beneficial interest in property one, first of all, looks to see what the financial contributions to the purchase were. If one finds, as in this case, that all money came either from one of the parties or by way of mortgage, one has to be very hesitant before finding a constructive trust.
In her oral evidence the claimant explained how she had two children who were at school in Northolt, so she was with them during the week, and at the weekends they would all come to Blake House. It was not until the end of March 1985 that she moved into Flat 14 Blake House permanently. So that puts a date to when she left the flat which she had in Middlesex. Easter that year was 7th April.
More crucially in her evidence she said she decided not to be a party to the loan. She told him it was his responsibility. He was the man of the marriage. The gist of it was that she could not help him financially. She had two children. She was then a student studying 'O' and 'A' levels and Art at different times. So she was not able to help him financially. She, quite clearly on her own evidence, expected him to see to the finances of the place, which is very understandable.
It does seem to me that there was no agreement as such that the beneficial interest should be shared. I do not think it was the sort of thing that they thought about. They were getting married in the usual way. She would obtain the usual rights of a wife to be housed by her husband, and if there were to be a divorce matters would be sorted out by the divorce court.
Then, when he left her, it seems to me she had to pay the mortgage instalments in order to keep a roof over her head. She did make those payments, the mortgage instalments, but that was not what she expected. She expected him to pay them.
It may be that as against him she could have insisted on staying in the property for some period, possibly her life, or at any rate possibly until her children reached their majority. But none of that arises for decision because none of that bound the mortgagee. The mortgagee has taken possession and sold the house.
So I am not satisfied on that evidence and in all the circumstances of the case that there was any agreement that she should have half or the whole or any particular share, though she may well have understood that she might well have had some kind of entitlement as against him to remain there. That is a different matter from saying she had an interest in the property.
The other, further reason for finding that there was no beneficial interest as such on her part in this property is the evidence that he wished to transfer the property to her. By the application of August 1986, and indeed by his letter of 16th May, it seems to me that he was regarding himself (which would be in my judgment the natural assumption since he had bought the property) as the owner and that he would be transferring the property, his property, to her.
So that, really, is the other major reason for not being satisfied that there was such a beneficial interest in the claimant when the property was acquired.
I feel it is very hard on the claimant that that wish was not put into effect. It is hard for a number of reasons, but I cannot see my way round it. It is hard first of all, because the divorce court, had he lived, might have transferred the property to her. I am not saying it would have, but it might have. Or it might have given her some interest in the property. Secondly, it is hard because had the Inheritance Act matter been brought in time, the court dealing with that matter might have made an award in her favour upon the basis that it was his wish, expressed in the application.
Then it seems to me rather hard that having been defeated in those two ways, there is nothing left, no other way of getting some interest in the property. There is merely the attempt in this action to allege an equitable interest which I do not find did exist.
That, I think, is sufficient to deal with the one point that I have to decide. But I want to go on to make some provisional observations about the counterclaim.
The defendants say that because the claimant went back into the property seven times and occasioned the Halifax enormous cost, that they are entitled to damages, or some kind of equitable accounting, against the claimant. I suppose it is possible that if she had an interest of some kind that could be taken into account. But this is rather a novel point that I have not come across before. She was certainly not a trustee of the property in any way. So she owed no trust obligations. I am not sure if the defendants have any cause of action at common law to recover the damages that they claim. I am told by Mr. Hardwick, who has appeared for them, that it is very likely that they will not proceed with the counterclaim and will abandon it if my decision on the claim is against the claimant.
So those are my reservations about the counterclaim. There is a mention of trespass as a cause of action, but it seems to me that the party trespassed upon is the Halifax. I do not propose to say any more about that matter because it has not been fully argued.
This matter was set down for a one day trial. Even if the counterclaim succeeded, it is highly unlikely that the defendants would recover anything against the claimant, who has been, certainly for much of the time, on State benefits and she has not got the money. So I am not deciding the counterclaim today. I am hoping that it will never trouble any court in the future. As I say, it has its problems.
I sincerely hope that this will be the end of litigation between the warring factions in this case, and that the claimant will not be troubled by any further court proceedings. I think one of the difficulties is that she believes that, because it was the matrimonial home, she has an automatic right to an equitable interest in the property, but that is not how the law works. Again, I refer to what may be a very hard result that stems from the fact that the property adjustment order was never obtained because the deceased died before it could be made, and because in some ways the Inheritance Act claim miscarried.
I think I have said enough to dispose of this action.
With some regret, it seems to me that it cannot succeed.
MR. HARDWICK: Your Honour, I am instructed to seek the defendants' costs of this matter.
MRS. LEBENS: Your Honour, I do intend to appeal in the High Court on this matter.
JUDGE COWELL: I will come to that in a moment.
MR. HARDWICK: There is a costs schedule, but simply in principle in my submission it is costs following the event in this matter. Unless there is anything in particular on which I can help your Honour, that is my submission. One of the difficulties the defendants have found is guessing exactly what the case is going to be.
JUDGE COWELL: I know. Perhaps I should just have recorded in my judgment that one of the difficulties is that there was no statement as such prepared by the claimant for the purposes of this case, though it did seem to me that there was sufficient in the earlier statements that she had made in other proceedings for that to be effectively overlooked. There was a statement at p.125 on 11th October 1993 in the divorce proceedings. At p.229 on 14th September 1994, another statement of the same date, and then the Inheritance Act proceedings statement of 6th August 1996, and then the application to resuscitate this action, 14th May 2001. So, in one way, I was not surprised that the claimant had not set out her case again.
MR. HAREWICK: Indeed.
JUDGE COWELL: Mrs. Lebens, first of all, on the question of costs, what Mr. Hardwick says is that he's succeeded on the claim and you should pay the costs of the claim.
MRS. LEBENS: Excuse me, sir, he did not succeed on the claim. I came here to walk out of here with a home. I have not heard you refer to the human right issue of this case. I have not heard you put any merit to my case. That is why I need to take it to another court. I need a home to live in as a human being from my husband.
JUDGE COWELL: I cannot do anything about that.
MRS. LEBENS: You cannot, sir, because you have my claim and it has been thrown back at me, to be taken somewhere else. This is how I look at it. I am going to take it up to the Lords. I have no home. I have no money. As I have stated before, I do not even have a widow's pension. It still has not come through yet. I am still being assessed for my widow's pension. I have not got my widow's pension yet. I have not got a roof over my head. They have got all my properties. They have got my settee, my drawers, my husband's stuff. They have got all my property. They have got some of my old bank books. They have got my books. They have got everything, all my chattels, my personal chattels they have. I guess you are saying they have a right to take all that away from me. Not just the property, they have a right to take my things away. I think you did refer back to the bank and they are in court at the moment. I am trying to see if I can retrieve what they have taken away. Again, I still think it is because of that consent form.
Anyway, thank you for presiding over it. It has been very enlightening for this woman.
MR. HARDWICK: I hardly need to say that the question as to whether in fact costs are recovered from Mrs. Lebens or whether in fact any steps are taken to pursue them is a different question to whether in principle she ought to pay them. The fact of the matter is that these are two young men who stand on intestacy to receive the property. They have had to defend this action and they have incurred costs in doing so.
JUDGE COWELL: Despite the fact that their father appeared to want to transfer the property.
MR. HARDWICK: Your Honour, you made the point. In 1986 and 1990, it is there in the papers that he was in and out of psychiatric units.
JUDGE COWELL: That was later.
MR. HARDWICK: What was later was the medical report of 1994. He was in Fairmile Psychiatric Unit in 1990. There is a reference in 1986 to him having been in psychiatric unit. Evaluation is later, but the fact of being in units covers that period of time. I take the point, but the simple fact is it is a legal claim which has been made, never properly formulated. I am here as a result and Timothy and William Lebens have incurred costs as a result. As a result of being successful in the defence, whether or not steps are taken to pursue her is a separate issue.
MRS. LEBENS: Excuse me, counsel can you refer back to your client that they have ex-wife. I was his wife for six years. Costs have been incurred. Explain that to the boys. It was expensive here too. They came after it. They voluntarily came in. It is going to cost them more in the High Court.
JUDGE COWELL: It is all right, Mrs. Lebens. I have got to decide. On the costs, the fact is that on the claim the defendants have been successful. It seems to me that the deceased, at a fairly early stage after the marriage, was anxious to transfer the property, so far as he could. That, no doubt, has influenced the claimant. I think the fair order to make is that the claimant should pay 50% of the defendants' costs.
MRS. LEBENS: Where am I going to get that from?
JUDGE COWELL: It is only an entitlement. I do not expect you will be able to pay at all.
MRS. LEBENS: I am not going back on my family for this. They are the rich ones.
JUDGE COWELL: It will be subject to detailed assessment.
MR. HARDWICK: Your Honour, the only thing I should then add, you having made that adjudication in principle, is there is a schedule of costs. I do not know whether your Honour would be interested in looking at that now? Technically, it is a one day trial.
JUDGE COWELL: Is it a fast track trial?
MR. HARDWICK: It is not actually a fast track.
JUDGE COWELL: I think it would be better to have it subject to a detailed assessment. It is the costs of the claim, not of the counterclaim.
MRS. LEBENS: But your Honour, I put the claim in.
JUDGE COWELL: It is their costs of defending the claim.
MRS. LEBENS: But they did not defend it, they organised, they employed these people.
JUDGE COWELL: I am doing that in your favour. Let me explain. I am not allowing them the costs of their counterclaim in so far as their making of a counterclaim added to the costs. It is only the costs of the claim, not the counterclaim.
MRS. LEBENS: Excuse me, your Honour, is it not unlawful to demand of someone who is not in a position to pay?
JUDGE COWELL: No, there is a difference between the entitlement to costs and whether they actually recover the costs. All I have said is they can have half. You may never be able to pay.
MRS. LEBENS: Your Honour order me to pay?
JUDGE COWELL: I cannot order you to pay.
MRS. LEBENS: I cannot do it.
JUDGE COWELL: The other point is about the appeal. I have to say, before you can take it any further, whether I give leave to appeal or refuse.
MRS. LEBENS: I am not going to appeal; I will take it up to the High Court.
JUDGE COWELL: If you want to take it any further I have got to help you on your way.
MRS. LEBENS: Thank you. I need a home.
JUDGE COWELL: I do not sound much help. I say refuse permission. If I do not say anything you have got to come back on some other occasion. This clears your way to go to the Court of Appeal. But I do not encourage you to go. I am not here to advise you. Refuse permission to appeal. You have got to put in your application within 14 days. I am just telling you what to do if you want to do it.
What do I do with the counterclaim, Mr. Hardwick?
MR. HARDWICK: Your Honour, can you stay it for the moment, or can it be adjourned?
JUDGE COWELL: It had better be adjourned generally.