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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Bass v Warner & Anor [2014] EWHC 4768 (Ch) (03 September 2014) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2014/4768.html Cite as: [2014] EWHC 4768 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Civil Justice Centre Priory Courts 33 Bull Street Birmingham
		3rd September 2014

1. JUDGE PURLE: This claim is brought by Marion Ann Bass, whom I shall call "Marion", against members of her family: Mrs. Rachel Warner, whom I shall call "Rachel"; Mr. Keithley Warner, whom I shall call "Keithley" and Mr. Thomas Warner, whom I shall call "Thomas". I am referring to people by their first names because that is how they were referred to during the trial. With many people sharing surnames, that was the convenient course, and no-one objected. Rachel is Marion's sister, Keithley is Rachel's son, and Thomas is Keithley's son.
2. The case is brought by a Litigation Friend for Marion, namely Mrs. Susan Fulford, who has been duly appointed by the Court of Protection upon evidence indicating that, from (at the latest) September 2009, Marion has lacked capacity sufficient to enable her to bring these proceedings herself. She is over 80 and has for many years suffered from, according to the doctors, dementia, and the results of considerable alcohol abuse.
3. The evidence I heard went back to how she conducted herself before and after the death of her husband, Vernon, following a tragic accident resulting in his death on the 13^th May 2005. The principal evidence I heard of early behaviour around that time was from the Defendants themselves, who insist that the real problem Marion faced was alcohol abuse and not mental incapacity. I also heard evidence from Mrs. Fulford, who was originally instructed in April 2006 to pursue a claim in respect of Vernon's death. Her client then was Mrs. Sadler, as Executrix of Vernon's last will, and I heard from her also.
4. Mrs. Fulford's point of contact for the purposes of the personal injury claim was principally Mrs. Sadler, but she did also meet Marion, on one occasion with Rachel and Keithley, in January 2008. Marion was frail and drawn at that time, and spoke only when spoken to. She was told that Rachel had found Marion on the floor shortly after Vernon's death, and that Marion had been admitted to hospital with a diagnosis of self-neglect. She also had other contact with Keithley, who produced a power of attorney apparently executed by Marion. Mrs. Fulford originally said this was in January 2008, but on checking her file corrected the date to May 2008. Mrs. Fulford also met with Marion on a number of occasions after she was placed in Oaklands Nursing Home in May 2008, who said that Keithley was not to have any of her money. In May 2009, Marion told Mrs. Fulford that she was unaware of any Power of Attorney.
5. Mrs. Sadler's evidence, upon which she was not shaken in cross-examination, or seriously challenged, went to the general inability that Marion suffered from both during the latter part of Vernon's lifetime, and following his death. That period is significant because the transactions which I am called upon to consider in this case started in March 2006, that is to say, after Vernon's death, but at a time when the alcohol abuse and dementia of Marion were established and noted.
6. It is said that following Vernon's death, Marion had, according to Mrs. Sadler, good and bad days. Mrs. Sadler gave evidence about Marion's forgetfulness and apparent inability to deal with financial matters generally. She did so in some detail, raising, to my mind, a serious question mark over whether Marion had the capacity to enter into the transactions into which she is said to have entered in 2006. Even before Vernon's death, Marion often did not have any idea what was going on, and repeatedly asked the same questions over and over again. On the night of Vernon's accident (Christmas Eve 2004), he did not return home but the next day (Christmas Day) Marion was not aware that he had been missing all night. After the accident, Marion would not remember to go to bed, eat, wash, or attend to household duties. After Mrs. Sadler became Executrix, Marion would be asked to sign papers, and there were days when Mrs. Sadler was concerned whether Marion understood, and others when she did. She often joked with Marion saying that she was a rich lady. Marion would often joke back saying "oh no no no". She had according to Mrs. Sadler no idea how much money Vernon had left her.
7. The transactions around this time were, or are alleged to have been, first the gift of a sum in excess of £20,000 to Rachel and secondly a loan of about the same amount to Keithley, repayable only upon her death. These are both alleged by the Defendants to have been effected in March 2006, in the sense that there are two pieces of paper which have emerged bearing a March 2006 date, purporting to relate to those two transactions.
8. There are a number of documents in this case which have been produced, as these two were, in the first instance by Keithley, who is Marion's nephew. He is obviously a highly intelligent individual who has, over the last few years, until the intervention of the Court of Protection, involved himself very much with Marion's affairs, especially her financial affairs, though also (to some extent) her care.
9. Care issues tend to overlap with financial issues for the simple reason that a substantial liability for Marion's care was incurred over time towards Birmingham City Council in respect of which Keithley was sued, as he had contracted with the Council, in place of Marion, so as to become personally liable for her fees. He was willing to do this upon the footing that he had sufficient control of her affairs to enable that to happen and to reimburse himself. A substantial Judgment in excess of £35,000 has been entered against him by Birmingham City Council.
10. The Claimant acknowledges that credit has to be given, against any liability that Keithley may now have towards her, for the amount of the Judgment entered against him by Birmingham City Council. It must be right that as someone acting effectively, as in a sense he was, as Marion's agent, he would have a right of indemnity in respect of necessaries of that kind, and Mrs. Preston for the Claimant conceded the point.
11. The first question I have to decide is: did Marion have or not have capacity in March 2006, assuming that the dates on the documents that I have seen are genuine and record genuine transactions? In my judgment, she did not. I say that firstly because of the historical evidence that I have already referred to, especially that of Mrs. Sadler, and also (to a lesser extent) that of Mrs. Fulford.
12. I also have in mind the Defendants' own evidence. Although asserting in a joint witness statement general capacity on Marion's part, they did not all speak with one voice in the witness box. So far as Keithley is concerned, he is convinced (genuinely so, I am satisfied) that Marion has always had capacity, and has capacity today, to deal with her affairs generally. That, of course, cuts across the Court of Protection order made on 5^th July 2012, appointing the Litigation Friend as Deputy.
13. So far as Rachel and Thomas are concerned, it was clear from their oral evidence that they had great difficulty accepting that Marion could have had capacity to enter into any transaction concerning any financial matter during the relevant period (2006 onwards). Rachel in effect said so, and Thomas regarded the proposition that Marion had capacity as laughable.
14. In my judgment, the evidence overall, including the medical evidence to which I shall come, points unerringly towards a finding that she did not have the relevant capacity at any material time.
15. There were, incidentally, two Powers of Attorney executed by Marion, one in 2006 and another in 2009. However, they are not shown to have been used in any material way. I have the gravest of doubts and, if necessary, would find that Marion did not have capacity to execute these Powers of Attorney, which were prepared by Keithley. The second one was executed after a Dr. Fleming, at the request of the Court of Protection, had stated his view that Marion lacked capacity. It was notarised by an independent third party lawyer at Keithley's request, but not one who had any inkling that Marion lacked capacity, and who was not told by Keithley of Dr. Fleming's view, though Keithley was well aware of it.
16. Dr. Fleming only came on to the scene in 2009, and could not speak authoritatively of what the position was in the past. He properly made the distinction that there are two stages to go through: first, one has to analyse the nature of the infirmity from which the individual in question is suffering, which in this case was dementia and/or alcoholic abuse; and secondly, one must then ask as a separate and distinct question, was the effect of that infirmity such as to deprive the individual of capacity in relation to the particular transaction or series of transactions in question? He noted that there had been previous diagnoses of dementia, but not of incapacity.
17. To an extent, Keithley's position was supported by Dr. Walji, who apparently thought in March 2006 that Marion had capacity for the purpose of executing her husband's will, which appeared to mean proving his will and acting as Executrix. As it happens, she did not prove or act as Executrix, and Dr Walji could not be categorical (when reporting recently) on whether Marion did or did not have capacity to manage or make decisions regarding her finances during 2006 and 2007. He recognised that she deteriorated after her husband's death, and that her self-neglect worsened.
18. Even if Marion did have capacity for some purposes in 2006, that would not necessarily be determinative of whether she had capacity for the transactions with which I am concerned, under which she divested herself of substantial wealth, either by way of gift or long term loan, shortly after her husband's death.
19. The cash funds that she disposed of were a substantial part of her assets. She did also as beneficiary under Vernon's will have a claim in respect of Vernon's accident, but that took years to come to fruition. In addition, she had a right to buy her Council house. This is something that came to be considered early on at the instigation, I find, of Keithley. It would, of course, require funding. I shall come shortly to how that came about.
20. It seems very strange indeed that she should both contemplate buying her Council house and, before doing so, dispose of a substantial part of her liquid assets.
21. As I have said, there are two documents, both dated March 2006, which relate to these disposals. There is also a third document I should mention straight away, a will of Marion, also prepared by Keithley and dated 4^th October 2006. That will contains certain recitals which could not possibly have been known to the draftsman at that date, 4^th October 2006. In particular, there is a reference to the Oaklands Care Home, which was chosen substantially later. This document was handed in to Court on the 27^th August 2014, during the course of the hearing. Under cross-examination, Keithley accepted that he, when drafting it, could not possibly have known all the facts which are referred to in the document, and therefore said that the document had been added to after its original execution.
22. It was, however, on the face of it, only executed and witnessed once, and I am afraid I do not believe that evidence. The document has no signs of having been added to, and, had that been the case, there would have been an unexplained gap on the first page. The Clause referring to Oaklands is followed by Clauses which one would expect to have been there originally. In my judgment, this document is simply a false document which has been produced for the purpose of these proceedings to demonstrate that Marion's true affections lay principally with Rachel and Keithley, who benefited mainly from the estate under the bogus will, rather than other members of the Bass family, who received small bequests.
23. That conclusion also causes me to regard any other document emanating from Keithley with suspicion. Of the two documents said to date from March 2006, one (concerning the alleged gift) saw the light of day relatively early on in these proceedings, the other (concerning the loan) only emerged during the hearing before me. It refers to a loan of £22,550, a figure that fits in with no known bank account entry and has no apparent verification. The document is signed by Marion, but I have grave doubts whether it was signed on the 3^rd March 2006; it was produced in Court on the 28^th August 2014.
24. There is a reference to a document bearing "Exhibit No. 1" in a questionnaire completed by the Defendants, filed with the Court of Protection. That questionnaire, though there were no solicitors on the record for the Defendants, was produced by solicitors, who although not on the record, were apparently acting for them.
25. "Exhibit No. 1" was requested from those solicitors by the Claimant, and it was merely said in reply that enquiries were being made of the client. Nothing more was heard until the loan document was produced on the 28^th August 2014. Keithley blamed that on his solicitors. In my judgment, it is evident from the contemporaneous correspondence that the solicitors did not then have this document, and I have serious doubts whether it then existed.
26. What is more, what happened, following the purported date of those two documents, is entirely inconsistent with what they record. Dealing with the alleged gift to Rachel, £20,588.52 was paid on 5^th April 2006 (not 3^rd March 2006) to a joint account number X14762891 in the name of Marion, Rachel and Keithley at Santander. That amount came from another Santander account under the control of Marion, X8479500. The explanation I received in evidence was that the monies were credited to the new account following a visit which Rachel and Keithley made with Marion to Santander.
27. As the monies were paid into another joint account upon which Marion's name still appeared, it could be regarded, as some of the evidence on the Defendants' side suggested, as a convenience, simply to enable either Rachel or Keithley to access Marion's funds for her. Marion did not like going out. She was a bit of a recluse by all accounts, though she could have moments of feistiness, and she needed someone, if she was going to access any funds, to access them on her behalf. The setting up of the joint account is consistent with an arrangement of convenience of that kind, but is wholly inconsistent with this being a gift for Rachel's entire benefit, which is the case that is now advanced.
28. It seems to me that there never was any intention on Marion's part to give this money away. In any event, I do not consider that Marion had capacity, in March or April 2006, properly to weigh her own financial needs against the prudency of giving sums of this magnitude away to Rachel, if that is what she did. I do not believe she did so, and I can place no reliance upon the document of 3^rd March 2006 suggesting that she did. Rachel, I should add, had no knowledge of that document and never discussed any gift with Marion. Everything she knew appears to have derived from what Keithley told her.
29. Likewise, when I turn to consider the alleged loan, the facts said to support it occurred not in March, as the lately-produced document would suggest, but much later, when on the 26^th June 2006 an account with the Halifax was opened with a balance of £22,124.57 transferred from another Halifax account of Marion. Again I am told that the arrangements for setting up this account were the same, the second account being a joint account in all 3 names.
30. Had this transfer been a loan, as the answer to the Court of Protection questionnaire indicated, to Keithley, there would be no reason for putting the monies into an account in the joint names of Marion, Keithley and Rachel. I cannot therefore accept that there was an intention to make a loan. The monies were in my judgment, and remained, Marion's.
31. There was also a shortfall of £650.54 between the sum transferred out of the first account and the sum transferred into the second Halifax account, number 00654994. Keithley accepted in evidence that he had had the use of the shortfall and that the shortfall should be regarded as additional loan monies. There is no evidence, however, that Marion ever intended to make a loan of these amounts either.
32. Moreover, Marion in my judgment lacked capacity at the material times to make loans of these amounts, and, whilst Keithley appears to believe to this day that Marion's problems were mainly if not solely related to excess alcohol consumption and not such as to affect her capacity, in my judgment he must have known of the severe infirmities that she was under, and has in reality, turning a blind eye to the obvious, now persuaded himself of the unpersuadable.
33. It follows, in my judgment, that Marion is entitled to recover all of those monies, both those which went into the Halifax account, the £22,124.57, and the shortfall of £650.54, as her monies, which were held upon trust for her. The joint account arrangement itself suggests that, and the £650.54 is not to be regarded any differently. No-one has been able to point to precisely what happened to that shortfall, but the monies were clearly hers to begin with, as they were in her sole account, and Keithley has, as he accepts, had the benefit of those monies. The Halifax account remained untouched until June 2007 by which time the balance increased (with interest) to £22,602.67, though the Claimant's claim is limited to £22,500.
34. All the sums in the joint accounts have subsequently been withdrawn. The liabilities for those withdrawals are the liabilities of Keithley. There was no gift to Rachel, and no loan to Keithley. Rachel did not dispose of Marion's monies once they were in the joint accounts. Those monies were withdrawn under the instructions of Keithley, from both the Santander and the Halifax joint accounts. Although Rachel could have drawn on them, she never did so; nor did Marion.
35. There were other withdrawals of £3,000 and £730 which have also been queried. However, those sums could not be pursued, despite an unsuccessful application for permission to amend, when it was pointed out that broadly similar sums, though for a slightly lesser amount, which were not said to have been Marion's, had been credited to the account. They may or may not have been Marion's, but there was no evidence that Mrs. Preston could point to, to that effect.
36. Accordingly, the gift claim succeeds in the sum of £20,588.52, as there was no gift, and Marion lacked capacity in that respect. Keithley, who dispersed the sums, is liable to replace those sums, as he is also in relation to £22,500 removed from the Halifax account, 00654994, and the shortfall of £650.54. Those sums also are recoverable as trust monies, because they were held upon trust and not loaned.
37. I turn now to consider the Lloyds account. Between March 2006 and December 2008 there were further withdrawals totalling £15,768.23 from a Lloyds account, which was in Marion's sole name. It had previously been a joint account with Vernon. These debits were effected by Keithley alone, usually if not always over the counter and without, he says, the use of a cheque book, although a number of account references to cheque numbers exist. I do not think that matters ultimately, because no-one disputed that those particular debits were Keithley's debits, which he said he incurred in respect of direct and indirect general care of Marion, for which he reimbursed himself.
38. However, not a single item of reimbursable expenditure has been identified, though the general example is given of taking her for hospital appointments and the like. That is the sort of activity which family members do voluntarily out of a sense of duty, and there is no suggestion that I can find anywhere that Marion ever ordered any of these services or supplies, if that is how they could be regarded, as necessaries.
39. There were also a number of debits from this account which appear to relate to a mortgage, which I will come to, but no claim was made against Keithley in relation to those particular debits, and I can ignore them so far as Keithley's liability is concerned.
40. The consequence is that Keithley is liable for the withdrawals totalling £15,768.23 and is, in principle, in relation to those sums. as well as the other sums I have mentioned, liable to pay interest over the period in question.
41. Once that has been calculated, he would then be entitled to be given credit for the liabilities which he has assumed towards Birmingham City Council of just over £35,000. The exact amount, if not agreed following this judgment, can be dealt with on an account.
42. That deals with Keithley's position. There is then the position of Rachel. As I have said, she was not gifted anything, and is not liable for the purported gift, which remained Marion's monies in an account to which she, Keithley and Marion were parties, because she did not disperse the funds in that account, Keithley did. There is, however, a serious question mark over the use she made of Marion's Post Office account, to which she had access, apparently via a card. This was the account into which the pension of Marion was paid until it was diverted by Birmingham City Council to cover care costs, and her attendance allowance was also paid into that account.
43. It seems to me that, unless Rachel can show that the money she withdrew from this account was dispersed in Marion's favour, for necessaries, which is what she says she was doing, she is in principle liable to Marion for those withdrawals.
44. These withdrawals, using Marion's card, totalled just under £70,000 up to July 2011. Rachel claims that the withdrawals were needed for the general care of Marion, who resided with her between (according to Rachel) 2005 and 2008. That does not really explain the fact that all of those sums of money were withdrawn, on a monthly basis, in full as they were received, and dispersed right through to July 2011.
45. It is accepted by Mrs. Preston that, for the period for which Rachel both housed and cared for Marion, there should be some allowance in Rachel's favour.
46. It is in dispute as to what the period should be. Mrs. Preston says that the relevant period is from October 2006 (when Mrs. Preston accepts that Marion was housed by Rachel) down to May 2008, when Marion went into Oaklands Nursing Home. There is no issue as to the latter date. The issue is: what is the correct starting date?
47. It is said by the Defendants that the correct starting date is considerably earlier, some time in 2005. That is what they said in the Court of Protection questionnaire. However, in the Chancery proceedings before me, the October 2006 date is admitted. That, however, may be a mistake.
48. In September 2006, Marion applied, in a form apparently filled in by a broker, for a mortgage in respect of the Council property which she was then purchasing. She was purchasing that jointly with Thomas, taking out a long-term mortgage over 30 years or so, despite the fact that she was then 81, in a sum which was in fact more than the purchase price.
49. The purchase price was £42,000, but there was a discount, which was effectively Marion's contribution. In addition there was the joint mortgage, as regards which, as between (i) the mortgagee and (ii) Marion and Thomas, Marion and Thomas were jointly liable.
50. In the application made for that mortgage, it was stated that Marion had been living and was living in the property. That was a month before the pleaded date of October 2006. It was also said that Thomas had been living there for six months, which is inherently improbable, because it was a one-bedroomed property, although there was also a sofa bed in the drawing room. Thomas was a very young man then of around 22, I think, who would not find living with someone of Marion's age and disposition palatable. The accuracy of the application must therefore be doubted, but gives no credence to an earlier (2005) date as the date upon which Marion ceased to live there.
51. No date in 2005, not even an approximate one, has been identified by Rachel as the date when Marion started to live with her. In my judgment, it has not been demonstrated that a date before the 1^st October 2006 is appropriate. On the contrary, the evidence supports a later date. There is some evidence that Marion went into hospital at some time around November 2006 and that her move in with Rachel coincided with her leaving hospital. I shall, for relative safety's sake, take a date in the middle of November as the relevant date, down to May 2008, and will treat that continuous period, from November 2006 to May 2008, which is 18 months, as being the period during which it can reasonably be assumed that Rachel must have been dispersing monies on the general care of Marion.
52. Mrs. Preston suggests a sum of £12,000 as a proper allowance over that period, taking a maximum of 80 weeks, which is on the generous side of 18 months, at £150 per week. It seems to me that that is a fair and just allowance for which Rachel ought to have credit. It was also said by Rachel that £20 per month was needed, which she paid out of Marion's money, for Marion's personal needs after she went to Oaklands Nursing Home. That would cover the period from May 2008 down to July 2011, by which time Birmingham City Council diverted the pension into their own account. That is 38 months, which on my arithmetic comes to £760. Rachel is to be given credit for that amount as well. Subject to that, she also will be chargeable in principle with interest from the date of the respective withdrawals.
53. Rachel is therefore liable to reimburse the sums withdrawn, together with interest, less the credits I have allowed.
54. There are other matters raised in the questionnaire which I have not dealt with, as they have no financial impact at the end of the day. The main point is that payments from a joint account formerly in the names of Vernon and Marion, at Lloyds, number 07451778, do not require any decision, because the monies from that account actually went into another account which I have dealt with.
55. That leaves the position of the property in which Marion formerly lived. She lived for over 30 years at 28 Benson Parade, Balsall Heath, Birmingham B12 9TH. That was a Council house which she had the right to buy. She exercised that right in October 2006. All the arrangements were put in place by Keithley. Having purchased the property, there was also a declaration of trust executed by herself and Thomas which, after reciting her contribution (and getting the figure wrong) and the joint mortgage, declared a beneficial interest in equal shares between the two.
56. What is sought, somewhat ambitiously, by the Particulars of Claim is a declaration that Thomas alone is legally responsible for the outstanding balance on the mortgage, together with any additional costs and interest.
57. The mortgage on the property (being greater than the purchase price) produced on completion a surplus getting on towards £7,000, which actually went into an account in the joint names of Keithley and Rachel, Marion and Thomas having signed a letter of authority to that effect. Some payments were made towards the discharge of the mortgage, but none was made after September 2011 and the property was then repossessed by the mortgagee and sold. After the sale, there was a shortfall of £18,827.24.
58. The claim for declaratory relief is brought upon the basis that the Claimant lacked capacity to enter into the mortgage in October 2006. The pleading recognises that what must be challenged is the mortgage, if Marion is to get the declaration she seeks.
59. The argument before me proceeded on the implicit assumption, occasionally made explicit by me in my questioning of Mrs. Preston, that a signature on a mortgage by someone lacking capacity, as in Marion's case, is a nullity, rather like a forgery. However, it is clear that that is not the case, and that a transaction entered into by a person lacking capacity is in fact voidable, if the other party to the transaction knew or should have known of the incapacity.
60. Quite what the mortgagee thought it was doing lending on a long term loan to someone aged 81, I do not know. The mortgagee's solicitor, who was also Marion's and Thomas's solicitor, has put in a statement acknowledging that he never had a face-to-face meeting with Marion. I do not get the impression that he ever had a face-to-face meeting with Thomas either. Whether, therefore, it could be said that through the agency of its solicitor, the mortgagee ought to have known of Marion's lack of capacity, is something which has not been explored, and which I express no view upon. Likewise, it might be said that, as Keithley was left by the mortgagee to arrange the signing of documents, his knowledge may be attributable to the mortgagee for this purpose.
61. I cannot express any final view upon any of that, but what that highlights is that for Marion to be relieved of any burden under the mortgage, the claim needs to be made against the mortgagee, who is not a party. I am not criticising anyone on Marion's side for not increasing the level of risk and expense, but I do not see how I can properly grant the declaration sought without having the mortgagee before the Court. There may also be considerable obstacles in the way of setting aside the mortgage, given that it is not a nullity and that the mortgage has been acted upon by the making of the loan, repossession and sale.
62. It is, of course, possible that I could be asked to set aside the declaration of trust. That has not been sought. I would also need to hear argument as to what was to take its place. As the pleaded case does not seek to set aside the declaration of trust, this alternative has not been explored.
63. It seems to me that in the absence of any viable attack on the mortgage, and no attack at all on the declaration of trust, I must take both of them, including the declaration of trust, at face value. However, nothing that I say should be taken as being determinative of what the position may turn out to be should there be any subsequent attempt by the mortgagee to recover from Marion. The mortgagee is not before me and therefore I cannot make an order which is either adverse to it, or to its advantage.
64. There is also a claim for an occupational rent against Thomas. It is said that he was resident in the property following Marion's departure, which I have put as best I can at some time in November 2006, until the mortgagee took possession in late 2011. It is accepted by the Defendants that he was there, though it is said he was only there for a short while, during which time renovations were carried out. I have had no explanation from the Defendants as to what was going on at the property, apart from during that short period, even though the property was under the control of Keithley and Thomas.
65. A very unsavoury picture of the state of the property was portrayed by Keithley. It appears that there were problems of infestation by vermin and much need for decoration and repair. There had been some redecoration late in Vernon's lifetime, but not throughout the property. The extent of disrepair may have been somewhat exaggerated, however, and it is accepted that renovation works were carried out by Thomas after Vernon's death, though Thomas only stayed at the property (it is said) for a few weeks.
66. It seems to me that what is lacking from the Defendants is any explanation of what was happening to the property throughout the period of approximately five years following Marion's departure, before the property was repossessed.
67. According to Mrs. Fulford, Keithley told her in January 2008 that Thomas was then living there. In Paragraph 15 of her supplementary witness statement of 30^th July 2014 she said this:

"Mr. Warner [sc. Keithley] told me that his aunt was now living with his mother Rachel at 128 Jenkins Street, Small Heath. He explained that Marion and her great nephew, Mr. Warner's son, had purchased Marion's flat under the Right to Buy Scheme. He told me her share of the mortgage was £150 per month which he had arranged through Capstone Mortgages. He said he was guarantor for his aunt. Mr. Warner told me he thought purchasing the property would be a good future investment for Marion. He had had central heating fitted under the Warm Front Sponsored Scheme which was a government and Energy Company initiative whereby heating systems were provided to the elderly and persons under a disability free of charge. He told me his son was living at the flat. He commented that system was in and had to be used which I thought an odd thing to say".

68. The significance of that, which I have read in full, is the indication that Thomas was living at the flat, which was plainly habitable. It seems very strange that Keithley should have said this if it was not true. It seems equally strange that Mrs. Fulford, who has no axe of her own to grind, should attribute that statement to Keithley unless it was made. There does not appear to have been any scope for misunderstanding. In my judgment, all that was said by Keithley to Mrs. Fulford.
69. In reaching that conclusion, I bear in mind that there are other statements attributed to Keithley which are strange. For example, Keithley's statement that he was guarantor for his aunt is a strange statement, because no-one was a guarantor. Thomas and Marion were joint borrowers from the mortgagee and the property was not, ostensibly at any rate, bought as a future investment for Marion but as a property which they were both interested in beneficially.
70. However, Keithley effectively stood by those other statements, though he portrayed his son, not himself, as guarantor in the witness box. I can see that once he got the notion of a guarantor in his head, he could easily equate himself with his son, as he was the person who was in fact, though using Marion's funds, discharging the mortgage, or most of it, not just the £150 per month he mentioned. The £150 per month does not seem, incidentally, to have been a figure that was ever discussed with Marion, and she would not have understood the niceties of the transaction anyway. Nevertheless, Keithley in his evidence stood by this figure too.
71. Thomas gave evidence before me. He was an unimpressive witness who seemed to be remarkably disinterested in what the proceedings were about, though he was understandably concerned not to miss work, and obtained my permission not to turn up on the last day, because of his work commitments. That is something which I said I would not hold against him, though it did mean, as I pointed out, that he would be dependent on Keithley to represent his interests, which he was happy with. His demeanour in the witness box, which I acknowledge can be a very unreliable test of credibility, was very poor, he choosing to give his evidence chewing gum, with his hands thrust in his pockets whilst taking the oath.
72. Some of his answers were glib. On the whole he did not seem to know very much about what had been going on between Keithley and Marion, because as he acknowledged, he dealt solely with Keithley, who in turn dealt solely with Marion. He also disputed that he was in the property for more than a short time while he was carrying out renovation works, but in the absence of any explanation, and there is none, of what happened to the property for the extended period down to its repossession in 2011, I conclude, despite those denials, that Keithley truthfully told Mrs. Fulford in 2008 that Thomas was living there, and that he remained in occupation until at the latest when the mortgage payments stopped in September 2011. Thomas as one of the beneficial owners had a real interest of his own to protect and a residential property is in general best not left unoccupied.
73. Accordingly, for the period November 2006 to September 2011, inclusive, Thomas is chargeable with an occupational rent in respect of Marion's share. Her share, as there is no application, at least presently, before the Court, to set aside the declaration of trust, is 50 per cent, and Thomas's occupational rent - and I will if necessary hear argument on this from counsel - should be either 50 per cent or 100 per cent, of which half goes back to him, which amounts to the same thing.
74. I am not sure it makes any difference, except that as there are arrears, it may be said that the occupational rent should go first to discharging mortgage liabilities, and then back to the beneficiaries. That has not been raised in argument hitherto, because no-one has known which way I am going to decide the main point. There will therefore be an inquiry. Thomas is not here today, and I do not wish to decide anything final in terms of quantum which he has not had the opportunity to address, and so I will not make a definitive ruling upon that today, but it will be left over for the account and inquiry, if anyone chooses to raise the point.
75. It seems to me also that, given the clear terms of the declaration of trust, unless an attempt is going to be made to set it aside, requiring the mortgage to be paid jointly, I should order an account of mortgage repayments so as to ensure that Thomas's mortgage instalment contributions equal those actually paid out of Marion's monies. As Mrs. Preston pointed out during the course of argument, all the facts justifying an account are pleaded, and although that particular account is not sought in terms, there is the time-honoured prayer for further or other relief, as well as a general prayer for an account in Paragraph 4, and one specifically in respect of occupational rent (though not expressly mortgage contributions) in Paragraph 5.

(Later)

Costs Judgment

JUDGE PURLE: The Defendants will pay the Claimant's costs.