B2/01/0170

Neutral Citation Number: [2001] EWCA Civ 571
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(His Honour Judge Boggis)
                                     Royal Courts of Justice
                                    Strand
                                    London WC2
 
                               Tuesday, 27th March 2001
B e f o r e :

LADY JUSTICE ARDEN

- - - - - - - - - - - - - - -

FRANCIS KENNEDY
(Trustee and personal representative of
Ellen Kennedy deceased)

‑ v ‑

LEONARD KEITH BOOTON
Applicant
- - - - - - - - - - - - - - -
(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171‑421 4040
Fax No: 0171‑831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -

THE APPLICANT appeared in Person.

- - - - - - - - - - - - - - -
J U D G M E N T
1.	LADY JUSTICE ARDEN: This is an application by the defendant, Mr. Booton, for permission to appeal from the order of His Honour Judge Boggis dated 24th November 2000. By that order the counterclaim of Mr. Booton was dismissed. It was held that the claimant, Mr. Kennedy, could recover possession of the ground floor flat, 91 Gravelly Hill North; that the defendant was to give possession thereof from 24th January 2001; that in the event that the terms agreed and filed were carried out by the defendant, the claimant's claim for rent and for all and any monies against the defendant be dismissed with no order as to costs and, fourth, that in the event that the terms agreed were not carried out by the defendant, the claimant to have liberty to restore the claim for rent and other moneys. I am not concerned with the content of the terms agreed.
2.	Apart from permission to appeal Mr. Booton also seeks an extension of time for 42 days, on the ground that he suffers from ill health and therefore did not meet the time limits for filing the application. I grant that application and deal with the application for permission to appeal on its merits. He also seeks permission to put in fresh evidence, namely the keys to a box, together with an envelope which he has described as being sealed with sellotape and bearing Lloyds Bank's red seal, and the name of Mrs K Kennedy on it. Mr. Booton also seeks a stay of execution of the judge's order.
3.	It is necessary to say a little about the facts in those proceedings. In this action there was a claim by Mr. Kennedy for possession of 91 Gravelly Hill North, Erdington (“the property”). The appellant, Mr Booton, was defending the claim and seeking a declaration that he had an equitable interest in the property.
4.	Mr. Kennedy is the son of Mrs Ellen Kennedy whom Mr. Booton calls Kay Kennedy. She died in 1992. She left a will leaving everything to Mr. Kennedy, including the property. The facts as found by the judge were that Mrs Kennedy was born in 1919. Mr. Kennedy was born in 1939. Mrs Kennedy became the manageress of a butchers shop sometime after this. In the mid‑1950s she acquired a grocery shop called Hill Stores which she managed while her sister ran a grocery. In 1960 she made a will leaving everything to her son. In 1953 she separated from her husband and was later divorced. In 1967 her store was compulsorily purchased. She instead took a 21 year lease of a property at 53, Bromford Drive, a shop with a flat above, where she opened Arkle Stores. She lived there with her son, her sister and another man with whom she had a relationship called Mr Basilisco. In 1968 Mrs Kennedy acquired a shop at Six Ways, Erdington. She fitted it out as a fish and chip shop, known as the Yenton Barbeque. She continued to run both Arkle Stores and the Yenton Barbeque. Mr. Kennedy then bought a house at 74, Kingsbury Road. He let this out as flats while continuing to live with his mother above Arkle Stores.
5.	Mrs Kennedy met Mr Booton about this time and commenced a relationship with him. There is some dispute about whether that started in 1967 or 1969, but I do not think it matters for today's purposes.
6.	In July 1969 Arkle Stores was sold. Mrs Kennedy moved to live in the top floor of 74, Kingsbury Road and she continued to run the Yenton Barbeque. The applicant, Mr Booton, continued to live with Mrs Kennedy at 74, Kingsbury Road. In 1970 the applicant bought 80, Kingsbury Road but intending to convert the property into flats. However, no tenant ever lived there. The mortgagee took possession. It was eventually sold with a small gain to Mr. Booton. In 1972 Mrs Kennedy bought 91, Gravelly Hill North and Mrs Kennedy and the applicant moved into the ground floor flat. The rest of the building was let. The applicant claimed that he had spent £800 towards the deposit of the house or else that this sum was given to Mrs Kennedy as part of household funds after the purchase.
7.	In 1974 Mrs Kennedy obtained an injunction against the applicant preventing him from entering the house or interfering in her business at Yenton. In the succeeding months the applicant went to prison for nine months for what he described in his statement as a motoring offence but which upon further examination is an offence connected with a motoring offence, namely using his father's driving licence and perverting the course of justice. The point of referring to that is that the judge found that their relationship was re‑established during that period and they came back together after he left prison. In 1982 Mr Booton began a haulage company. Mrs Kennedy sold the Yenton fish and chip business. Mr Booton became bankrupt and began claiming housing benefit, stating that he was a tenant of Mrs Kennedy's property. The property was mortgaged. I am not concerned with that. As a condition of a further mortgage, the applicant signed a letter confirming that he had been a tenant of Mrs Kennedy in the property paying rent at £36 a week, and confirming that he required three months' notice to quit. In October 1992 Mrs Kennedy died. Her will left everything to her son who became her personal representative.
8.	A deed box was found at the property. It is this deed box which is the subject of part of the application before me. Mr. Booton's case is that Mrs Kennedy gave this box to him some three days before she died, and that Mr Booton took it and put it in a safe place in the house. After she passed away he produced it and left it in the room in the presence of Mr Kennedy and some other persons. When he returned he found that it had been forced open. It was Mr Kennedy who forced it open. He admitted that he did so in the absence of Mr. Booton. Both Mr Kennedy and his aunt said that the box only contained some keepsakes and a few papers but not any will executed by Mrs Kennedy. Mr Booton argued that the box had contained documents, particularly a will. He said that he had had the keys all along and he initially argued that the respondent destroyed the papers in the box.
9.	The judge made certain findings. He found that the applicant did not have a beneficial interest in the property. He dismissed the counterclaim. He said that the applicant was prone to exaggeration. He considered the leading authority of Lloyds Bank v Rosset and made the following findings of fact: (1) there had been no express agreement to share the property when it was bought. The relationship was in its infancy at that stage. The funds for the purchase came from Mrs Kennedy's sale of Hill Stores and the applicant had played no part in that business; (2) the applicant did not contribute financially to the purchase. He had no money at the time from which he could have made such a contribution; (3) there was no express agreement to share after the purchase. If there had been Mrs Kennedy would have asked for the applicant's permission before she charged the property for her son's benefit; (4) it was not possible to infer that there was an agreement to share on account of the mortgage being discharged from the takings of the Yenton business in which the applicant had worked; (5) the applicant was not encouraged to act to his detriment by thinking that he was acquiring an interest in the property. He did some work on the property but, so the judge said, it was no more than repaying Mrs Kennedy for providing him with a home; (6) there were no papers in the box; (7) the applicant was fraudulently claiming housing benefit and Mrs Kennedy was aware of this, and (8) Mrs Kennedy never intended the applicant to have an interest in the property, nor encouraged him to think that he did. She knew that he was a financial liability and kept her finances from him.
10.	After the judgment the judge adjourned the case to allow the parties to discuss his findings. That is why there are certain provisions in the order which represent agreed terms.
11.	As respects this application the applicant has three grounds. First, he disputes the findings of fact in paragraphs 1 to 8 of the judgment; in particular, paragraph 1, no express agreement to share prior to purchase, and paragraph 6, no papers in the deed box when it was opened. Second, he wishes to refer to case law on donatio mortis causa. Third, he complains that counsel for the respondent wrongly referred to his previous conviction, which was a spent conviction under the Rehabilitation of Offenders Act 1977.
12.	So far as appeals on questions of fact are concerned, it is very difficult to mount such an appeal. It has to be shown in a case such as this, where there are primary facts found against the applicant, that the judge's finding was against the weight of the evidence. Mr. Booton has not advanced that point. He has concentrated on two points, namely the question of donatio mortis causa and the judge's admission in evidence of the prior conviction which was spent.
13.	Taking the first point first, so far as donatio mortis causa is concerned, Mr Booton referred me to Sen v Headley [1991] 2 All ER 638. This was a landmark case in the field of donatio mortis causa. It establishes that there are really three requirements for donatio mortis causa: that the gift was made in contemplation of death, that it was made on the condition that it was to become absolute only on the donor's death and that there was delivery of the essential indicia of title. The particular requirement in issue in this case is the question of whether there was adequate delivery of the title deeds to the house. Mr. Kennedy says that the box was handed to him by Mrs Kennedy very shortly before her death and that he also obtained the keys. The position is that the keys were not produced at the trial. There are apparently about three keys, one which Mr. Booton had available shortly before the death, and two more in the envelope sealed and having the Lloyd's Bank seal on it. Those keys were available to be produced at the trial but were not so produced. As I understand it, they are now lodged with the envelope with Mr. Booton's former solicitors.
14.	The position is this. If there was a delivery of the box, Mr. Booton would be able to show the requirement of delivery of the box itself, but he would have to show also that the box contained the deeds. That is not open to him on the judge's findings. He puts the case in an alternative way, by saying that the delivery of the box should be seen as an indication of the trust being vested in him, but it is clear from Sen v Headley that there must be delivery of the indicia of title. In that case there was an issue about whether the title deeds to unregistered land could ever, as a matter of law, be the subject of donatio mortis causa, but the principle is that there must be the indicia of title. That means that Mr. Booton would have to have established that the box which was handed to him contained the deeds. There would be no prospect of success on appeal in arguing that it was sufficient that the box was, as it were, figuratively a gift to him of the title deeds.
15.	Moreover, there is a further difficulty in this matter. The question of donatio mortis causa was never pleaded in these proceedings and the evidence on gift is very limited. In paragraph 12 of his statement Mr. Booton says that he and Mrs Kennedy went to collect a deed box from Lloyds Bank, Erdington, and that Mrs Kennedy then gave him the keys in a sealed envelope and told him that the box should be opened after his death. At that point there was no gift of the box or anything in it. Then he said that the last time she opened it in his presence was in the week prior to her death and he saw at that time that the box was full of papers and other items. She informed him that the box was his and to take good care of it. Then he went on to refer to the fact that she had made a will in 1960. She told him that the will had been destroyed or lost over the years and he had reason to believe that she had subsequently made a further will and codicil from which he was to benefit. He then says that when Mrs Kennedy passed away he recalled that he brought the deed box, which she had given him, out of the bedroom. He showed it to Mr Kennedy and other members of the family and he informed everybody who was present that he had the keys and would open it in the view of everyone at a later time. He then had to go out to see to certain arrangements. When he returned some hours later he discovered that the deed box had been forcibly broken into. Mr. Kennedy said that there had been nothing in the deed box concerning him after he had examined the contents. He continued:
“Although I obviously had no proof I believed that the deed box did contain some documents of relevance to me otherwise Mrs Kennedy would not have taken the trouble to give it to me and her insistence that I 'hide' the box for safekeeping, I believe the deed box may have contained a more recent will or codicil.” 
16.	Mr. Booton accepts that the title deeds to 91 Gravelly Hill were not in Mrs Kennedy's possession. Therefore, he cannot establish that the title deeds were ever in the box at any relevant time, nor has he been able to establish that there was a will in the box. All he can say is that the box was in itself a gift to him. That is the evidence.
17.	The judge made no findings as to what had happened in 1998 on going to the bank. He does refer to the gift shortly before her death, but his overall conclusion was that Mrs Kennedy never intended Mr Booton to have an interest in the property.
18.	So far as donatio mortis causa is concerned, I can sum it up in this way. There is no real prospect of success on appeal on this point. First the matter was never pleaded and therefore the judge did not have it before him to consider and the parties did not call whatever evidence they needed to on the issue. Secondly, it could only ever be donatio mortis causa of the box itself and that would not be enough to give Mr. Booton the property which he desires, because it is well established that you have to give the essential indicia of title in order to effectuate a donatio mortis causa (see Sen v Headley).
19.	I turn to the second matter, that the judge should not have admitted the prior conviction in evidence because it was spent. In this connection Mr. Booton relies on section 7(3) of the Rehabilitation of Offenders Act 1974 as considered and applied in Thomas v Commissioner of Police for the Metropolis. In the normal way a spent conviction would not be admissible in evidence. The effect of the authorities is to that effect. However, section 7(2) of the Act separately provides that nothing in the relevant section of the Act affects the determination of any issue or prevents the admission or requirement of any evidence relating to a person's previous convictions or to circumstances ancillary thereto. 
“(f) in any proceedings in which he is a party or a witness, provided that, on the occasion when the issue or the admission or requirement of the evidence falls to be determined, he consents to the determination of the issue or, as the case may be, the admission or requirement of the evidence notwithstanding the provisions of section 4(1).”
20.	The position here is that Mr. Booton's own witness statement candidly admitted that he had spent time in prison. It was relevant to showing the relationship with Mrs Kennedy and that it had continued notwithstanding the interruption, which is reflected in the injunction that she had obtained. He himself put it in evidence. The question that he was asked was whether it was really a motoring offence. He had to accept that it was not strictly a motoring offence but an offence connected with motoring. The question of the judge excluding the evidence did not arise, and the judge was not bound to exclude it. Mr Booton says that the judge should have given him credit for the disclosure that he had made in his statement. As I see it, this point is particularly relevant to finding 6 that the judge made, that he preferred Mr Kennedy's evidence that there was no relevant paper in the box, although he criticizes Mr Kennedy for having opened the box. The reason he gives for accepting this is that Mr. Kennedy was not a fraudster. There was no reason why he should have told a lie about what he found in the box and there was a Mrs Potts also there. The judge had to decide whether Mr Booton or Mr Kennedy was right about the contents of the box. In the event, he preferred the evidence of Mr. Kennedy and rejected that of Mr. Booton. In reaching this conclusion he did not take into account the prior conviction in 1974. He looked at the matter and decided that Mr. Kennedy's evidence was to be preferred. Had he been concerned about the conduct of Mr. Booton, I think that the matter that would have played a greater part in his reasoning was the fact that Mr Booton had claimed housing benefit which he subsequently accepted he was not entitled to do. That was a more current matter than the matter in 1974, which is mentioned in passing by the judge since it is relevant to the chronology. I do not think that there is any real prospect of success in saying that the judge should have given him some credit for the disclosure or in some way held the conviction against him. I do not think that an appeal on that point would stand any success. In the circumstances, I dismiss the application. It follows that I also dismiss the application for permission to put in fresh evidence and for the stay of execution. So far as the fresh evidence is concerned, I would point out that this was clearly available at the time of the trial for placing before the judge had it been relevant.
Order: Application for an extension of time allowed; applications for permission to appeal, to put in fresh evidence and for a stay of execution refused.
(Order not part of the judgment of the court)