The claimant claimed a beneficial interest in a residential property registered in the joint names of the first and second defendants, his sister and brother-in-law respectively, on the basis that in 1959 he paid £600 towards the purchase price. By the time the matter came to trial in October 2015 both first and second defendants had lost capacity.
Giving judgment at first instance, HHJ Faber found both claimant and defendant witnesses to be unreliable. She concluded that on the evidence available she could not arrive at any finding as to who had made the £600 downpayment in 1959, that accordingly the claimant had not discharged the burden of proof and the resulting trust claim should therefore be dismissed. In light of the third defendant’s conduct, in particular making an untrue allegation of assault and the judge made no order as to costs.
The claimant appealed the substantive judgment and the defendants cross-appealed the decision on costs.
The following issues arose on the appeal:
A. Whether the judge was wrong to rely upon the burden of proof to dispose of a central finding of fact?
B. Whether the judge’s conclusion had properly been available on the evidence before her?
C. Whether the costs order was properly made?
1) The correct approach to the situation in which a court finds itself unable to resolve a disputed issue of fact except by reference to the burden of proof was addressed in Stephens v Cannon  EWCA Civ 222 and refined in Verlander v Devon Waste Management & Anr  EWCA Civ 835. A judge should only resort to the burden of proof where he is unable to resolve an issue of fact after having unsuccessfully attempted to do so by examination and evaluation of the evidence. The Court of Appeal should only intervene where the nature of the case and/or the judge’s reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort. Applying those principles, the judge did grapple fully and conscientiously with the evidence presented to her and strove to arrive at a conclusion. She gave clear reasons why she was unable to do so. On the facts, she was justified in reaching that conclusion. In the absence of any reliable evidence to show a payment had been made, the Court was being invited to draw an inference in the claimant’s favour. Since the judge concluded that she could not rule out alternative sources for the downpayment, she could not infer that it must have come from the claimant and correctly dismissed the claim. Stephens followed.
Per curiam A Judge considering they may be unable to reach a conclusion on the facts should alert counsel to this possibility if practicable.
2) The trial judge’s findings of primary fact, particularly their view on credibility, are virtually unassailable on appeal. Even the judge’s evaluation of primary facts attracted the same need for appellate caution. The conclusion reached was open to the Judge and there is no basis to interfere with it.
3) The Judge found the third defendant to have made an untrue allegation of assault, and also to have conducted himself unreasonably in circumstances where, had he behaved in a civilised manner towards the other parties, the whole litigation could have been avoided. There was no basis for interfering with the Judge’s exercise of discretion in relation to costs.
Appeal and Cross-appeal refused.INTRODUCTION  This claim was brought by the Claimant, Mr Constandas, against the First Respondent, his sister Mrs Lysandrou, the Second Respondent his brother-in-law, Mr Lysandrou and the Third Respondent his nephew Michael Lysandrou. The claim concerns the beneficial ownership of the house in Mackeson Road, London NW3 in which all the parties lived for …