Ely v Robson [2016] EWCA Civ 774

Jody appeared for the successful party before the Court of Appeal in the case of Ely v Robson [2016] EWCA Civ 774. This is an important decision in the field of proprietary estoppel and constructive trusts. Jody is a member of both our commercial & chancery and family practice groups, and has a particular expertise in cross over areas such as cohabitant disputes.

Jody appeared for Mr Ely. In summary, he was in a 20-year relationship with Ms Robson, and they had two children together. When they split up, Ms Robson attempted to claim a half interest in Mr Ely’s house. Proceedings were issued in 2007, and the matter was set for a trial. However, Mr Ely and Ms Robson reached an oral agreement on a park bench that Ms Robson would be permitted to live in the house until her aunt (who also lived there) died. They also agreed Mr Ely would leave 20% of the value of the house to Ms Robson after he died. However, in a misguided attempt to save money, neither parties’ solicitor converted the oral agreement into a signed written agreement or consent order. The Court was told that the matter was settled. The parties carried on living unhappily in the house together.

Six years later the aunt died and Mr Ely asked Ms Robson to leave. She refused to do so, stating there had never been an agreement. The matter returned to the Swindon County Court, where the Judge found that there had been a settlement agreement as Mr Ely had alleged. Ms Robson appealed to the Court of Appeal, arguing that the parties’ oral settlement agreement failed to comply with the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, which required contracts for the disposition of interests in land to be in writing signed by both parties, and that Mr Ely could not rely on the law of proprietary estoppel due to the decision in Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752.

The Court of Appeal (Sir Brian Levenson, President of the Queens Bench Division, and Kitchin LJ) accepted Jody’s submissions that the terms of the agreement were sufficiently clear, the parties had intended it to be immediately binding, and, the parties having acted on the settlement agreement for six years, it was not possible for Ms Robson to now resile from it. This was an area where the relief granted could be described as either a constructive trust, or as a result of proprietary estoppel. The two doctrines were concurrent at this point. Ms Robson was to vacate the property and pay the full costs of the first hearing and also of the appeal.