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Keeping up with the Jones case: establishing constructive trusts in ‘sole legal owner’ scenarios

Published online by Cambridge University Press:  02 January 2018

Brian Sloan
Brian Sloan*
Affiliation:
Robinson College, Cambridge
*
Brian Sloan, College Lecturer and Fellow in Law, Robinson College, Cambridge, UK. Email: bds26@cam.ac.uk
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Abstract

This paper considers the influence of the Supreme Court decision in Jones v Kernott on subsequent cases. It focuses on situations with which Jones was not directly concerned, namely where there is only one legal owner of a home and a non-legal-owning cohabitant seeks to establish that he has an equitable interest in it under a common intention constructive trust. The paper argues that while judges have mostly accepted that Jones is relevant to such sole-owner cases, they have had few opportunities (and taken fewer) to move beyond the restrictive approach of Lloyds Bank plc v Rosset and allow novel outcomes in the light of Jones as yet. It is contended that this state of affairs could ultimately produce a conservative approach that is undesirable for cohabitants who make indirect or non-financial contributions to shared lives, and remain without comprehensive statutory property and financial provision on relationship breakdown.

Type
Research Article
Information
Legal Studies , Volume 35 , Issue 2 , June 2015 , pp. 226 - 251
Copyright
Copyright © Society of Legal Scholars 2015

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Footnotes

*

Earlier versions of this paper were presented at a Cambridge Private Law Seminar in February 2013, and at a symposium entitled ‘Trusts of the Family Home and the Frontiers of Family Property: Domestic and Comparative Perspectives’ at Durham Law School in April 2013 (sponsored by the Modern Law Review). The author is very grateful to Amy Goymour and Andrew Hayward for organising the respective events, and to the attendees, Philippa Daniels and the anonymous referees for their helpful comments, though all errors are his own.

References

1. [2011] UKSC 53, [2012] 1 AC 776.

2. See eg M Pawlowski ‘Imputed intention and joint ownership – a return to common sense: Jones v Kernott’ [2012] Conv & Prop Law 149; M Yip ‘The rules applying to unmarried cohabitants' family home: Jones v Kernott’ [2012] Conv & Prop Law 159; J Mee ‘Jones v Kernott: inferring and imputing in Essex’ [2012] Conv & Prop Law 167.

3. Jones was also cited in Dunn v Institute of Cemetery and Crematorium Management [2012] ICR 941 (EAT) at [41] (Judge McMullen QC) to illustrate the differences in the legal treatment of married as compared to unmarried couples; and in V v V [2011] EWHC 3230 (Fam), [2012] 1 FLR 1315 at [81] (Charles J) to emphasise the dangers of treating judicial ‘concepts, guidance or principles’ as though they had statutory force. In Z v A (Financial Remedies: Overseas Divorce) [2012] EWHC 467 (Fam), [2012] 2 FLR 667, its principles on inference were used to ascertain whether the parties had an understanding that they would make no claims from each other in the event of divorce.

4. [1971] AC 886 HL.

5. [1970] AC 777 HL.

6. Crown Prosecution Service v Piper [2011] EWHC 3570 (Admin) at [7] (Holman J).

7. Lloyds Bank plc v Rosset [1991] 1 AC 107 HL; Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432.

8. See eg Eves v Eves [1975] 1 WLR 1338 CA; Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam. 211; Morris v Morris [2008] EWCA Civ 257, [2008] Family Law 521; James v Thomas [2007] EWCA Civ 1212, [2008] 1 FLR 1598; Fowler v Barron [2008] EWCA Civ 377, [2008] 2 FLR 831; Laskar v Laskar [2008] EWCA Civ 347, [2008] 1 WLR 2695.

9. [2011] UKSC 53.

10. Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619, [2012] 2 All ER 754 at [85] (Etherton LJ).

11. Crossco No 4 Unlimited [2011] EWCA Civ 1619 at [85].

12. See eg A Hayward ‘ “Family property” and the process of “familialisation” of property law’ [2012] Child & Fam L Q 284.

13. Matrimonial Causes Act 1973, Pt II; Civil Partnership Act 2004, Sch 5. Cf Marriage (Same Sex Couples) Act 2013, s 11.

14. See eg Law Commission ‘Statement on the government's response to the Law Commission Report “Cohabitation: the Financial Consequences of Relationship Breakdown” ’ (6 September 2011), concerning the current government's decision not to implement the recommendations contained in Law Commission Cohabitation: The Financial Consequences of Relationship Breakdown, Law Com no 307 (London: HMSO, 2007) during the current Parliament. For a recent comparative discussion,Google Scholar see Sanders, A ‘Cohabitants in private law: trust, frustration and unjust enrichment in England, Germany and Canada’ (2013) 62 Int'l & Comp L Q 628.CrossRefGoogle Scholar

15. See eg Deech, R ‘The case against legal recognition of cohabitation’ (1980) 29 Int'l & Comp L Q 480. Probert has suggested that few unmarried couples are left without any property-based legal protection on relationship breakdown:CrossRefGoogle Scholar Probert, R ‘Cohabitation: current legal solutions’ in O'Cinneide, C (ed) Current Legal Problems – Volume 62 (Oxford: Oxford University Press, 2009) p 341.Google Scholar Cf Lady Hale's suggestion (in Gow v Grant [2012] UKSC 29, 2013 SC (UKSC) 1 at [47]) that ‘a family law remedy such as that proposed by the Law Commission would be less costly and more productive of settlements as well as achieving fairer results than the present law’ in England and Wales. See J Miles ‘Cohabitation: lessons for the south from north of the border?’ [2012] CLJ 492 for discussion of the case, which concerned the Family Law (Scotland) Act 2006, but cf S Gardner ‘Problems in family property’ [2013] CLJ 301 for criticism.

16. See the remarks of Lord Neuberger in Stack v Dowden [2007] UKHL 17 at [117]–[120] and in Laskar v Laskar [2008] EWCA Civ 347 at [27]–[31].

17. Jones [2011] UKSC 53 at [25], [53] (Lady Hale and Lord Walker). Cf Lord Neuberger's dissenting speech in Stack [2007] UKHL 17; and Chaudhary v Chaudhary [2013] EWCA Civ 758, [2013] Family Law 1257.

18. [2007] UKHL 17. See eg T Etherton ‘Constructive trusts and proprietary estoppel: the search for clarity and principle’ [2009] Conv & Prop Law 104 for discussion.

19. See the text to 50 below.

20. [2013] Ewca Civ 953, [2013] 2 P & CR DG25 at [31] (Sales J). See also eg Re Ali [2012] EWHC 2302 (Admin), [2012] Family Law 1324 at [108] (Dobbs J).

21. See the text to 145 below.

22. [1991] 1 AC 107.

23. Rosset [1991] 1 AC 107 at 132 (Lord Bridge).

24. Ibid, at 133 (Lord Bridge).

25. Ibid. Cf Le Foe v Le Foe [2001] 2 FLR 970.

26. K Lees ‘Geary v Rankine: money isn't everything’ [2012] Conv & Prop Law 412 at 417–418.

27. See, infamously, Burns v Burns [1984] Ch 317 CA, discussed in eg Mee, J ‘ Burns v Burns: the villain of the piece?’ in Probert, R, Herring, J and Gilmore, S (eds) Landmark Cases in Family Law (Oxford: Hart Publishing, 2011)Google Scholar. Gardner has asserted with surprising confidence not only that Burns would not be decided in the same way today, but also that ‘a modern Mrs Burns would have maybe half the equity in the home, very possibly more’: Gardner, above 15, at 306. Cf Thomson v Humphrey [2009] EWHC 3576 (Ch), [2010] 2 FLR 107 at [29] (Warren J).

28. See eg M Dixon ‘The never-ending story – co-ownership after Stack v Dowden’ [2007] Conv & Prop Law 456; M Harding ‘Defending Stack v Dowden’ [2009] Conv & Prop Law 309; W Swadling ‘The common intention constructive trust in the House of Lords: an opportunity missed’ (2007) 123 LQR 511; R Probert ‘Cohabitants and joint ownership: the implications of Stack v Dowden’ [2008] Family Law 924; T Etherton ‘Constructive trusts: a new model for equity and unjust enrichment’ [2008] CLJ 265; S Gardner ‘Family property today’ (2008) 124 LQR 422.

29. Stack [2007] UKHL 17 at [58] (Lady Hale).

30. See A Briggs ‘Co-ownership and an equitable non sequitur’ (2012) 128 LQR 183; J Mee ‘Ambulation, severance, and the common intention constructive trust’ (2012) 128 LQR 500 for a discussion of the difficult questions of severance arising from the notion that a joint tenancy in equity is presumed from a joint tenancy at law.

31. Stack [2007] UKHL 17 at [56] (Lady Hale).

32. Ibid, at [69] (Lady Hale). See eg M Dixon ‘Casenotes editor's casenotes’ [2007] Conv & Prop Law 352 for criticism.

33. Stack [2007] UKHL 17 at [26] (Lord Walker).

34. Ibid, at [63] (Lady Hale). See also Abbott v Abbott [2007] UKPC 53, [2008] 1 FLR 1451 at [3]–[6] (Lady Hale, giving the advice of the board).

35. See eg Adekunle v Ritchie [2007] EW Misc 5 (EWCC), [2007] B.P.I.R. 1177 but cf Fowler v Barron [2008] 2 FLR 831.

36. [2010] EWHC 392 (Ch), [2010] WTLR 987 at [18] (Judge Hodge QC), citing Harpum, C, Bridge, S and Dixon, M Megarry & Wade: The Law of Real Property (London: Sweet & Maxwell, 7th edn, 2008) at [11–025]Google Scholar. (The phrase ‘it is now clear that’ seems to have been inserted between ‘economic conditions’ and ‘the common intention’ in the equivalent paragraph of the 8th edn, 2012.) See M Dixon ‘Editor's notebook: the still not ended, never-ending story’ [2012] Conv & Prop Law 83 at 84 on the weakness of the authority of Hapeshi on this point.

37. [2007] EWCA Civ 1212.

38. James [2007] EWCA Civ 1212 at [27].

39. Ibid, at [33]. It should also be noted that Ms James had conceded that Mr Thomas was ‘evasive’ and ‘unwilling’ when she raised the issue of putting the property into joint names (at [38]).

40. Ibid, at [37].

41. [2009] EWHC 3576 (Ch) at [26].

42. Thomson [2009] EWHC 3576 (Ch) at [25].

43. Ibid, at [29].

44. Jones [2011] UKSC 53 at [1].

45. Stack v Dowden [2007] UKHL at [68] (Lady Hale).

46. Jones [2011] UKSC 53 at [12] (Lord Walker and Lady Hale).

47. Ibid, at [52].

48. Ibid, at [13].

49. Ibid, at [51] (Lord Walker and Lady Hale), citing Chadwick LJ in Oxley v Hiscock [2004] EWCA Civ 546 at [69].

50. Lord Kerr emphasised that imputation ‘has nothing to do with what the parties intended, or what might be supposed would have been their intention had they addressed that question’: Jones [2011] UKSC 53 at [74].

51. Ibid, at [16].

52. Ibid, at [17].

53. Ibid, at [52].

54. Ibid, at [52].

55. Gissing [1971] AC 886 HL at 907.

56. See the text to 18 above.

57. Jones [2011] UKSC 53 at [59].

58. Ibid, at [59].

59. Ibid, at [51]–[52].

60. See also ibid, at [82] (Lord Wilson), and Pawlowski's view that ‘the essential inquiry boils down to the same thing’ in both sole- and joint-owner cases: Pawlowski, above 2, at 158.

61. Jones [2011] UKSC 53 at [52], referring to paras [51](4) and [51](5).

62. Stack [2007] UKHL 17 at [63]. See also Lees, above 26, at 418.

63. Jones [2011] UKSC 53 at [84].

64. J Lee ‘The Supreme Court and the doctrine of precedent’, Inner Temple Academic Fellow's Lecture (originally given 23 April 2011), available at http://www.innertemple.org.uk/downloads/education/lectures/lecture_james_lee.pdf (accessed 2 April 2014) at 11–16 highlights similar precedential difficulties with the permission of imputation in Jones.

65. [1971] AC 886 HL at 896. See also Lords Pearson (at 903) and Diplock (at 907–908) on the relevance of indirect financial contributions where they facilitated mortgage payments by the legal owner. The remarks of Lords Reid and Diplock were used by Lord Walker in Stack to support his doubts about Lord Bridge's approach: [2007] UKHL at [26].

66. See Law Commission Cohabitation: The Financial Consequences of Relationship Breakdown – A Consultation Paper (Law Com no 198, London: HMSO, 2006) at [3.30] for discussion of pre-Stack judicial remarks about the permissible bases of inference.Google Scholar

67. See eg Rezaeipoor v Arabhalvai [2012] EWHC 146 (Ch); Gallarotti v Sebastianelli [2012] EWCA Civ 865, [2012] 2 FLR 1231. Cf Sloan, B Informal Carers and Private Law (Oxford: Hart Publishing 2013) pp 81–88 Google Scholar for a discussion of the application of the common intention constructive trust in cases involving non-conjugal ‘carer’ relationships.

68. M Yip ‘The rules applying to unmarried cohabitants' family home: Jones v Kernott ’ [2012] Conv & Prop Law 159 at 162–163.

69. In addition to the cases discussed in detail in this paper, the ‘joint names’ domestic case of Quaintance v Tandan (unreported, Chancery Division, 24 July 2012) will have raised some relevant issues, although in the absence of a transcript (at the time of writing) it would be unwise to comment further. The judgment in W v M (TOLATA Proceedings: Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513 essentially concerned anonymity. In the ‘sole name’ domestic case of Curran v Collins [2013] EWCA Civ 382, the trial judge appears to have adopted a restrictive approach. In granting permission to appeal to the Court of Appeal (largely relating to a separate point), Toulson LJ branded the law of trusts ‘potentially unfair to people in the appellant's position’, but considered that ‘the judge was constrained to apply the law as it is’ (at [9]). In Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619, the claimants asserted that by virtue of certain oral discussions, the defendants were prevented from operating a break clause in a commercial lease. In the Court of Appeal (cf [2011] EWHC 803 (Ch), [2011] NPC 38), they based their (unsuccessful) submissions around constructive trusts and estoppel. The common intention variety of constructive trust developed in cases such as Jones was not held to apply in a commercial case such as the one at hand. On Etherton LJ's view, it was also distinct from the Pallant v Morgan equity (see, originally, [1953] Ch 43) on which the claimants also relied, although McFarlane LJ and Arden LJ differed from him in that respect (see also Kearns Brothers Ltd v Hova Developments Ltd [2012] EWHC 2968 (Ch)). It seems that Jones was intended to be cited in KK v MA [2012] EWHC 788 (Fam) at [19] (Charles J), but the transcript briefly and probably mistakenly refers to Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398. Chapman v Jaume [2012] EWCA Civ 476, [2012] 2 FLR 830 involved expenditure by the claimant on the home registered in his cohabitant's ‘sole name’, but Lewison LJ opined that the case was about neither resulting nor constructive trusts but the claimant's case ‘that he is simply entitled to have his money back’ (at [19]). In Shirt v Shirt [2012] EWCA Civ 1029, [2012] 3 FCR 304, the law on constructive trusts was not analysed in sufficient depth even to distinguish it from that on proprietary estoppel, and Slater v Condappa [2012] EWCA Civ 1506 was in substance analysed (without reference to authority) as an estoppel case turning on the evidence. Favor Easy Management Ltd v Wu [2012] EWCA Civ 1464 (cf M Yip and J Lee ‘ “Less than straightforward” people, facts and trusts: reflections on context: Favor Easy Management Ltd v Wu’ [2013] Conveyancer and Property Lawyer 431), Shami v Shami [2013] EWCA Civ 227, Mukerjee v Sen [2013] EWHC 1997 (Ch) and M v M [2013] EWHC 2534 (Fam) raised some relevant issues but the judgments contain no in-depth discussion of the relevant law. In Pankhania v Chandegra [2012] EWCA Civ 1438, [2013] 1 P & CR 16), the Court of Appeal held that there was in fact an express declaration of trust in relation to the relevant property so that reliance on Jones was misplaced. Finally, the appeal in the ‘joint names’ case of Akhtar v Hussain [2012] EWCA Civ 1762 was ultimately confined to the issue of occupation rent (see [2012] EWCA Civ 1170 for the judgment on permission to appeal).

70. [2012] EWHC 1387 (Ch), [2012] 2 FLR 807.

71. [2012] EWHC 1494 (Ch), [2012] BPIR 996.

72. Garwood [2012] EWHC 1494 (Ch) at [17] (Judge Leaver QC).

73. Ibid, at [17].

74. Ibid, at [19].

75. Ibid, at [22]. Any interest by the wife as a direct result of the declaration of trust was therefore the subject of an order under the Insolvency Act 1986, s 339 vesting that interest in the husband's trustee in bankruptcy as part of the husband's estate.

76. Ibid, at [23].

77. See eg ibid, at [20] (Judge Leaver QC).

78. [2012] EWHC 146 (Ch).

79. Rezaeipoor [2012] EWHC 146 (Ch) at [15].

80. Ibid, at [15].

81. See the text to 16 above.

82. [2012] EWHC 2302 (Admin).

83. Re Ali [2012] EWHC 2302 (Admin) at [104].

84. Ibid, at [105].

85. Ibid, at [108].

86. Ibid, at [106].

87. Ibid, at [148].

88. [2013] EWHC 2296 (Ch).

89. Ullah [2013] EWHC 2296 (Ch) at [6].

90. Ibid (emphasis added).

91. Ibid.

92. [2012] EWHC 429 (QB), [2012] Lloyd's Rep FC 341.

93. Coghlan [2012] EWHC 429 (QB) at [16].

94. Proceeds of Crime Act 2002, s 308.

95. Coghlan [2012] EWHC 429 (QB) at [112].

96. See eg Laskar v Laskar [2008] EWCA Civ 347.

97. See eg the remarks of Holman J cited in 111 below.

98. [2012] EWCA Civ 555, [2012] 2 FLR 1409.

99. She also claimed that she was a partner in the business, and much of her unsuccessful appeal focused on that aspect of the case.

100. Geary [2012] EWCA Civ 555 at [18]. Lewison LJ considered the possibility that the resulting trust applied in this case, though clearly he did not think the case to be so investment-focused that the Stack/Jones analysis was utterly inappropriate. Cf eg Laskar v Laskar [2008] EWCA Civ 347, discussed along with matters of ‘context’ in property law in N Piska ‘Two recent reflections on the resulting trust’ [2008] Conv & Prop Law 441; Sloan, B ‘Proprietary estoppel: recent developments in England and Wales’ (2010) 22 Singapore Acad L J 110 Google Scholar.

101. Geary [2012] EWCA Civ 555 at [18]. See also [19], [20].

102. Lees, above 26, at 418.

103. [2012] EWCA Civ 1752, [2013] 1 FCR 522 at [19]. See also Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619 at [85] (Etherton LJ).

104. [2012] EWCA Civ 865.

105. Ibid, at [1].

106. Ibid, at [2].

107. Ibid, at [31].

108. Ibid, at [5].

109. Ibid, at [6]. Cf eg Stack v Dowden [2007] UKHL 17 at [69] (Lady Hale) and [3] (Lord Hope); Laskar v Laskar [2008] EWCA Civ 347.

110. [2013] EWCA Civ 953 at [19] (Sales J).

111. [2011] EWHC 3570 (Admin). Due to the co-operation between Graham and Janet Piper, Holman J was conscious of the need to scrutinise their evidence carefully, but was also clear that when adjudicating upon the existence and extent of Janet's interest, ‘[t]he answer is the same whether the husband and wife are pitted against each other in bitter conflict, or are ranged together in opposition to the CPS’ (at [6]).

112. Piper [2011] EWHC 3570 (Admin) at [10].

113. Ibid, at [10].

114. [1971] AC 886 HL at 906.

115. Piper [2011] EWHC 3570 (Admin) at [11].

116. Ibid, at [10].

117. [2012] BPIR 854 (Ch) at [13] (Mr Registrar Jones).

118. Piper [2011] EWHC 3570 (Admin) at [6].

119. [2012] EWHC 1387 (Ch), [2012] 2 FLR 807.

120. Aspden [2012] EWHC 1387 (Ch) at [91] 1.

121. Ibid, at [95].

122. [2012] NICh 21.

123. [2013] EWHC 3403 (Ch) at [28].

124. [2012] EWCA Civ 865.

125. Gallarotti [2012] EWCA Civ 865 at [11].

126. Ibid, at [13].

127. Ibid, at [26].

128. Supreme Court ‘Permission to appeal results – November 2012’, available at http://www.supremecourt.uk/docs/permission-to-appeal-1211.pdf (accessed 2 April 2014) at 4.

129. [2012] EWCA Civ 1752.

130. Thompson [2012] EWCA Civ 1752 at [8] (Etherton LJ, paraphrasing para [14] of Judge Spencer's judgment).

131. Ibid, at [9] (Etherton LJ, paraphrasing para [15] of Judge Spencer's judgment).

132. Ibid, at [9] (Etherton LJ, quoting directly from para [16] of Judge Spencer's judgment).

133. Ibid, at [23].

134. Ibid, at [23].

135. [2012] EWCA Civ 555.

136. Geary [2012] EWCA Civ 555 at [21] (emphasis in the original).

137. Ibid, at [22].

138. Cf Stack v Dowden [2007] UKHL 17 at [60] (Lady Hale).

139. Geary [2012] EWCA Civ 555 at [22].

140. Ibid.

141. See eg Eves v Eves [1975] 1 WLR 1338 CA, and S Gardner ‘Rethinking family property’ (1993) 109 LQR 263 at 265 for strong criticism of such cases.

142. [2013] EWCA Civ 953, [2013] 2 P & CR DG25.

143. Smith [2013] EWCA Civ 953 at [2].

144. Ibid, at [57].

145. [2011] EWHC 3570 (Admin).

146. Graham Piper claimed to have paid £160,000: ibid, at [31].

147. Ibid, at [78].

148. Ibid, at [14].

149. Ibid, at [72] (Holman J).

150. Dixon, above 36, at 84 (emphasis in the original).

151. Dixon, M Modern Land Law (London: Routledge, 8th edn, 2012) pp 170–174.Google Scholar

152. [2012] B.P.I.R. 854 (Ch).

153. Rubin [2012] B.P.I.R. 854 (Ch) at [71] (Mr Registrar Jones).

154. [2012] NICh 21. See H Conway ‘Constructive trusts and the family home (yet again)’ [2013] Conv & Prop Law 538 for discussion of the case.

155. Brogan [2012] NICh 21 at [31].

156. Ibid.

157. Ibid, at [34].

158. Ibid, at [37].

159. [2013] EWHC 3403 (Ch). He was also unsuccessful in seeking provision out of her estate under the Inheritance (Provision for Family and Dependants) Act 1975.

160. Patel [2013] EWHC 3403 (Ch), [29].

161. Ibid.

162. [2012] EWHC 1387 (Ch). See J Lee ‘ “and the waters began to subside”: imputing intention under Jones v Kernott’ [2012] Conv & Prop Law 421 for discussion of the case.

163. Aspden [2012] EWHC 1387 (Ch) at [107] (Judge Behrens).

164. Ibid.

165. Ibid, at [110].

166. Ibid, at [111].

167. Ibid, at [112].

168. Ibid, at [118].

169. Ibid, at [123].

170. Ibid, at [128].

171. Ibid, at [125] (Judge Behrens).

172. [1982] Ch 391 CA.

173. Bernard [1982] Ch 391 at 404.

174. Ibid.

175. Ibid.

176. Aspden [2012] EWHC 1387 (Ch) at [126].

177. [2010] EWHC 2232 (Ch) at [73].

178. Ibid, at [75].

179. [2007] EWCA Civ 1212 at [24].

180. [2008] EWCA Civ 257 at [19] (Sir Peter Gibson).

181. [2012] EWHC 2302 (Admin) at [106] (Dobbs J). See the text to 86 above.

182. Rosset [1991] 1 AC 107 HL at 130.

183. [1975] 1 WLR 1338 CA.

184. Rosset [1991] 1 AC 107 HL at 133. See also Pettitt v Pettitt [1970] AC 777 HL and Harpum et al, above 36, p [11–25](1)(iii). Cf Matrimonial Proceedings and Property Act 1970, s 37.

185. See Harding, M and Malkin, I ‘The High Court of Australia's obiter dicta and decision-making in lower courts’ (2012) 34 Sydney L Rev 239 for a discussion of the significance of appellate obiter dicta in Australia.Google Scholar

186. Judging by the level of news coverage, the case of Curran v Collins [2013] EWCA Civ 382 (on which only the judgment concerning position to appeal is available at the time of writing) could become the new archetypal illustration of the legal non-owner's difficulties. See eg K O'Callaghan ‘ “Unfair” laws for cohabiting couples highlighted again’ (BBC News Online, 6 February 2013), available at http://www.bbc.co.uk/news/business-21337154 (accessed 2 April 2014); V Ward ‘Cohabiting laws unfair on women, says judge’ The Daily Telegraph 24 January 2013; L Tobin ‘Get it write if you cohabit’ The London Evening Standard 5 February 2013.

187. Cf the Cohabitation Rights Bill 2013–2014, a Private Member's Bill introduced into the House of Lords by the Liberal Democrat peer Lord Marks of Henley-on-Thames in October 2013.