Mr Kernott appealed to the High Court, arguing that the judge was wrong to infer or impute an intention that the parties' beneficial interests should change after their separation and to quantify these in the way which he considered fair. During that period, which lasted some 12  years, he made no contribution towards the property either by way or improvements, outgoings or mortgage payments. On the figures given above, had the property been sold then, and the whole of the endowment policy used to defray the mortgage debt, that would have given her £219,190 and him £24,355 (giving him a total of £191,387 from the equity in his home and the sale of the property).44. There are two much more substantial reasons (which overlap) why a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on. Ms Jones and Mr Kernott bought 39, Badger Hall Avenue in 1985 as beneficial joint tenants. In the meantime there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence. Having established that principle I have to consider what is fair and just between the parties bearing in mind what I have found with regard to the whole course of dealing between them.33. Lord Neuberger of Abbotsbury dissented as to the principles favoured by the majority although agreed as to the disposition of the appeal.66. In the meantime there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence. In May 1985 the parties, who had an infant child, purchased the property in joint names for £30,000. If the judge did accept it, it invited an inquiry as to what 'share' Ms Jones meant by her reference to Mr Kernott's 'share'? The judge's assessment could be justified, given that their direct contributions were a little over 4:1 in Ms Jones' favour and that the larger part of the capital gain on the property must have arisen after 1993. 65. In the light of the continued failure of Parliament to confer upon the courts limited redistributive powers in relation to the property of each party upon the breakdown of a non-marital relationship, I warmly applaud the development of the law of equity, spear-headed by Lady Hale and Lord Walker in their speeches in Stack v Dowden [2007] 2 AC 432, and reiterated in their judgment in the present appeal, that the common intention which impresses a constructive trust upon the legal ownership of the family home can be imputed to the parties to the relationship.79. He considered that the correct test was therefore what was "fair and just" between the parties, taking into account the whole course of dealing between them. There are two much more substantial reasons (which overlap) why a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on. 61. Jacob LJ defends the judge's decision on the basis that he was in the best position to assess the evidence, find the facts and draw appropriate inferences from primary facts; and he points out that an appellate court must exercise caution before reversing a judge on the facts. Case Information. In deducing what the parties, as reasonable people, would have thought at the relevant time, regard would obviously be had to their whole course of dealing in relation to the property.34. On the other hand, I would have no difficulty in concluding, as did Mr Strauss and as would Lord Wilson, that it was eminently fair that the property should be divided between the parties in the shares decreed by Judge Dedman. They are: (1) the proposition that  the interests of the parties are left by them to be determined either when their relationship comes to an end or the property is sold on the basis of what is then fair: (2)  the fact that  the court undertakes a  survey of the whole course of dealing between the parties in order to determine what proportions  the parties must be assumed to have intended from the outset for their beneficial ownership: and (3)  the court  makes such order as the circumstances require; this is a form of estoppel and is required to prevent a denial by the legal owner of the other party's beneficial interest. In most cases such a quest may well be elusive, because if the parties actually had any such intention, they would have voiced it; and if they did not voice it, that will probably be because they did not have one, with the consequence that there will be no basis for inferring otherwise. There are differences of some significance in the reasoning that underlies the joint judgment of Lord Walker and Lady Hale and that contained in Lord Wilson's judgment. He would not interfere with the judge's assessment of the fair proportions. The principal of the mortgage loan was repaid by a series of lump sum payments, to which Mr Stack contributed £27,000 and Ms Dowden over £38,000. This included all mortgage payments, the payments on the endowment policy, and all outgoings by way of household expenses, council tax, payments and repairs to the building. Nor will it matter in practice that at the first stage, of ascertaining the common intention as to the beneficial ownership, the search is not, at least in theory, for what is fair. It is hard to identify, particularly in the abstract, the factors which can be taken into account to infer an agreement or understanding, and the effect of such factors. The parties took out a loan for £2,000 for an extension which was mostly constructed by Mr Kernott. They also lead people to spend far more on the legal battle than is warranted by the sums actually at stake. The life insurance policy was cashed in and Mr Kernott was able to buy a new home for himself. They carried out extensive repairs and improvements to the house. In an interesting article by Simon Gardner and Katherine Davidson, "The Future of Stack v Dowden" (2011) 127 LQR 13, 15, the authors express the hope that the Supreme Court will "make clear that constructive trusts of family homes are governed by a single regime, dispelling any impression that different rules apply to 'joint names' and 'single name' cases". In relation to the second question Chadwick LJ concluded, in his summary at para 69, that, where there was no evidence of any discussion between the parties as to the proportions in which their beneficial shares in the family home were to be held, each was "entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property"; and he had made clear, at para 66, that such an entitlement arose because "what the court is doing, in cases of this nature, is to supply or impute a common intention as to the parties' respective shares (in circumstances in which there was, in fact, no common intention) on the basis of that which is shown to be fair". She said, at [54], that in such a case it should be assumed that equity follows the law and that the beneficial interests reflect the legal interests; and, at [56] and in the last sentence of [58], that this means joint beneficial ownership. Nor will it matter in practice that at the first stage, of ascertaining the common intention as to the beneficial ownership, the search is not, at least in theory, for what is fair. The key authority is Stack v Dowdon [2007] 2 AC 432, [2007] UKHL 17. The starting point is different. I consider that, as a generalisation, their observation goes too far – at least if the court is to take (as in my view it should) an ordinarily rigorous approach to the task of inference. Thereafter Ms Jones remained living in the property with the children and paid all the household expenses herself. In our judgment, "the whole course of dealing ... in relation to the property" should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions. The calculation of their shares on this basis produced a result so close to that produced by the judge that it would be wrong for an appellate court to interfere.Lord Collins agrees with Lord Walker and Lady Hale, holding that the differences in reasoning set out below are "largely terminological and conceptual and are likely to make no difference in practice." The judge found that their incomes were not very different from one another. The judge also found that "whilst the intentions of the parties may well have been at the outset to provide them as a couple with a home for themselves and their progeny, those intentions have altered significantly over the years to the extent that [Mr Kernott] demonstrated that he had no intention until recently of availing himself of the beneficial ownership in this property, having ignored it completely by way of any investment in it or attempt to maintain or repair it whilst he had his own property on which he concentrated".41. Therefore, in my opinion, his approach can be justified as being in accordance with the common intention of the parties. (iii) The decision reached by Judge Dedman, upheld by Deputy Judge Nicholas Straus QC was not perverse. and, if they did, in what way and to what extent. This case is not concerned with a family home which is put into the name of one party only. Only perversity – an error in principle - (e.g. 77. …. There are differences of some significance in the reasoning that underlies the joint judgment of Lord Walker and Lady Hale and that contained in Lord Wilson's judgment. Conversely, it was in the joint names cases that the courts had sometimes reverted to the strict application of the resulting trust (paragraph 65).39. Gardner and Davidson make the same point at (2011) 127 LQR 13, 15-16: "The context under discussion is one in which people will not normally formulate agreements, but (this is crucial) the very reason for this – the parties' familial trust in one another - also warrants the law's intervention nonetheless. 73. In its context that was plainly a reference to the first stage of the enquiry, namely whether there was a common intention that the property be beneficially owned other than in line with the legal title. Before elaborating briefly on that proposition, let me turn very shortly to the areas in which, as I see it, there is consensus among the other members of the court.68. The facts of this case are that the parties bought the house in joint names in May 1985 and occupied it with their two children until November 1993, when the appellant, Mr Kernott, moved out and the parties separated. Lord Walker and Lady Hale observe, at para 34 above, that in practice the difference between inferring and imputing a common intention to the parties may not be great.

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