Where a judge errs and/or there is a serious procedural irregularity an appeal will only succeed if there is a real prospect that the result would be different.
The High Court has considered an appeal from an exclusion to consider a claim for a loan in a dispute between former cohabitees in Kenneth Thomas v Deborah Porter [2023] EWHC 983 (KB).
The case concerned payment by the appellant to the respondent of a sum of £40,373 in May 2018 to settle her mortgage when the couple were in a relationship.
Following the breakdown of the relationship between the parties in April 2019 the appellant’s solicitors sent the respondent a letter before action claiming that the sum paid was an advance repayable on termination of the relationship.
The appellant then issued a claim for a proprietary interest in the property under a constructive trust.
At trial the judge accepted a submission by the respondent’s counsel that reference in the appellant’s reply to an alternative claim for subrogation and repayment of monies paid by way of loan – which was inconsistent with the claim for a constructive trust – was not the correct vehicle for such a claim and excluded it.
At the end of the case the judge decided that the appellant had not satisfied the claim for a constructive trust on the balance of probabilities. The appellant appealed the exclusion of the loan claim.
The judge had failed to consider adequately or at all the substantially greater prejudice to the appellant of excluding the loan claim than to the respondent in allowing it to proceed.
The defences to both claims were the same and the defence had covered the areas in question: the monies were advanced as a gift and any promise of repayment was no more than a moral obligation. The respondent had long known about the claim.
This was wrong and/or a serious procedural irregularity but there would be no injustice to the appellant unless there was a real prospect that the result might have been different.
The onus of proof in the loan claim was on the respondent to show that the payment was a gift but there was no reason to believe that the result would have been different.
The defence to a loan/subrogation was so intimately connected with the defence to the proprietary claim and it was clear that the judge had given detailed consideration to the issues. The decision would have been the same if the court had not excluded the loan claim.
Louise Clark is a property law consultant and mediator
