IN THE HIGH COURT OF JUSTICE
Mr. Richard McCombe QC (sitting as a Deputy Judge of the Chancery Division)
MARGARET ELIZABETH HAYWOOD Claimant
JOHN ARTHUR HAYWOOD Defendant
Counsel for the Claimant: Miss J. Bryant (instructed by M & S Solicitors Ltd)
Counsel for the Defendant: Mr. G. Crawford (instructed by Ellis-Fermor & Negus)
(This is the final version of this judgment and no further transcript need be made)
Mr. Richard McCombe QC (sitting as a Deputy Judge of the Chancery Division)
In this action the Claimant, Margaret Elizabeth Haywood ("Mrs. Haywood") claims against the Defendant, John Arthur Haywood ("Mr. Haywood") a declaration that certain chattels listed in a schedule to the Amended Particulars of Claim, and any proceeds of sale from any of them, are held by Mr. Haywood on trust for himself and Mrs. Haywood in equal shares, or in such other proportion as the Court shall determine. Included in the schedule, containing in excess of 250 items, are a few individual items claimed by Mrs. Haywood absolutely and certain others which are said by her to belong to the parties’ daughter, Julie. Mrs. Haywood also asks for an Order for sale of those chattels and any consequential directions. The Particulars of Claim also include claims in respect of a property known as Yew Tree House, Diseworth, Derbyshire, which was occupied by the parties as their home from 1980 until 1995 or 1996, but I have been told that those claims have been resolved by agreement, save as to costs. There is also a counterclaim by Mr. Haywood, to which I shall return below.
The Schedule to the Particulars of Claims contains 282 items. Of these 16 have been either conceded by Mr. Haywood to be Mrs. Haywood’s property or he has stated that he is willing to let her have them. Those are items 6, 11, 12, 80, 94, 95, 102, 263, 265 (one of the two individual items there identified), 266, 269, 270, 272, 274, 275 and 291. Three items have been conceded by Mrs. Haywood to be the property of Mr. Haywood. Those items are 76, 174 and 199. Eight items in the schedule are said by Mrs. Haywood to belong to Julie. Those are 164, 187, 224, 225, 226, 238, 256, 264 and the other item of two within item 265. That leaves 255 items in dispute in the following circumstances.
Mr. Haywood and Mrs. Haywood are (respectively) 57 and 55 years old. They met in 1965, when both were relatively young. Mr. Haywood was then married to another lady from whom he was separated. He was living at a flat above shop premises at Station Road in Sandiacre in Derbyshire. The shop was let to a Mr. and Mrs. Hardy, who ran a greengrocery business there, whereas the Defendant, who is a joiner by trade, ran a joinery business at Ilkeston. In 1966 Mrs. Haywood went to live with Mr. Haywood at the Sandiacre flat. From then until 1995 or 1996 they lived together as man and wife. Their daughter, Julie, was born in 1967. Notwithstanding this 30 year relationship, the parties never married, but the Claimant whose maiden name was Hunt, adopted the name Haywood, which she continues to use.
Mr. Haywood and Mrs. Haywood were the only witnesses. It is upon an assessment of their evidence that this case principally turns. Accordingly, I shall begin by stating my general impression of each of them as witnesses. I thought both of them were endeavouring to tell me the truth as they recalled it. I though both betrayed the signs of the unhappiness in which their relationship had ended, which had an effect on what they told me and how they told it. Mrs. Haywood was quite and timid in demeanour and she was occasionally slow to grasp some of the questions she was being asked. Not unnaturally she was unable to recall important details of events spanning many years, but to her credit she did not try to embellish her case to meet deficiencies of recollection. I do, however, accept the submission that, in dealing with one aspect of Mr. Haywood’s counterclaim, her evidence was not satisfactory, but I do not regard this as rendering the rest of her evidence unreliable. Indeed, as a whole on the main matters in issue, I found Mrs. Haywood more reliable as a witness than Mr. Haywood. He gave his evidence in a straightforward way, but at times was excitable and indignant in demeanour. In the areas where I am unable to accept his evidence, as set out below, it seems to me that that evidence and indignation were the product simply of an attitude of mind. He clearly regarded himself as the master of his relationship with Mrs. Haywood and of all their joint dealing. He also manifested a blinkered denial of the contribution made by her to their joint well-being. He saw himself as the master of the household and of the business and as the owner of all property of importance. He saw Mrs. Haywood’s livelihood as a matter of grace and favour from him. That attitude of mind prevented him from recognising the very significant contribution made by Mrs. Haywood to their lives together that I relate in more detail below.
To continue with the history of the matter, in 1968 the parties acquired, in Mr. Haywood’s name, a holiday cottage in Wales, which they spent much time in renovating. It was during stays at the Welsh cottage in particular that they both developed an interest in antiques and they occasionally purchased items which, as I find, they took back to the Sandiacre flat for domestic use.
In about 1969 or 1970 Mr. and Mrs. Hardy gave up the Sandiacre shop. It is common ground that the parties discussed together what should be done with the shop. It is Mrs. Haywood’s case that they decided to set up an antiques business together (see paragraph 14 of her first witness statement). Mr. Haywood says that it was he who opened the shop trading as "Look Around Antiques" in November 1972: see paragraph 14 of his witness statement. The distinction in the use of the pronouns "we" (by Mrs. Haywood) and "I" (by Mr. Haywood), in relation to the running of the business, continues throughout the witness statements, which constituted the main evidence in chief. It is a distinction that lies at the heart of the present dispute.
It is accepted by Mrs. Haywood that all relevant formalities in relation to the business, e.g. leases, accounts, VAT registration, tax returns and so forth, were in Mr. Haywood’s sole name. She says, however, that, notwithstanding this, the business was held by him upon trust for the parties equally: see paragraph 11(b) of the Particulars of Claim and Paragraph 38 of her witness statement. This is denied by Mr. Haywood. In these circumstances Mrs. Haywood puts her claim to the bulk of the chattels in issue in two ways, which are stated in the Particulars of Claim as either complimentary or alternative cases. First, she says that the items in issue were acquired by them with the express common intention that they should be used in their home and should be owned by them jointly. Secondly, she says that anyway the items were purchased with funds "generated" by the antiques business, which (she says) was owned beneficially by them both. It does not seem to me that these contentions are mutually exclusive.
Mrs. Haywood says that, throughout the life of the antiques business, she served in the Sandiacre shop (until that was sold in 1982), worked on restoring and cleaning antiques (including stripping and polishing work), prepared sewing boxes, drapes, valences, pleats and backdrops, cleaned paintings, dismantled, cleaned and re-assembled chandeliers, loaded deliveries and the like. She told me that this work was often conducted in the evenings and at week-ends. Mr. Haywood’s case was that Mrs. Haywood’s work was less extensive than she maintains. But, he did not appear to dispute that, in broad terms, Mrs. Haywood was active in the business to a greater or lesser extent throughout its life and he acknowledged expressly in oral evidence that she did more in the business than the normal employee would do. He also acknowledged that the business did better financially, by virtue of her contribution, than it would have done otherwise. I do not, therefore, accept his statement (in paragraph 32 of his witness statement) that "her contribution at the shop wasn’t worth employing anyone to do at a proper wage".
It was also common ground that it was she who acted as book-keeper for the business, keeping ledgers, stock records, VAT details and the like. It was accepted also that Mrs. Haywood was paid no wages, although the business accounts, in Mr. Haywood’s name, included a figure for such wages. It was also agreed that the parties went together to some auction sales and several fairs in the ordinary course of the business.
I do not think that it is necessary to determine precisely the extent of restoration and cleaning of antiques carried out by Mrs. Haywood, since to my mind it is clear from the evidence of both parties that she worked extensively in that business and (subject only to demands of their daughter, Julie) that she worked in it full time and for no wages. It seems to me that, to the outside world, apart from the formal documentation such as there was, Mrs. Haywood would have appeared to be a joint proprietor of the business with Mr. Haywood. In ordinary parlance, the business would have appeared to be a joint business run by a husband and wife team.
It will be seen, therefore, that I do not accept the submission, made on behalf of Mr. Haywood, that Mrs. Haywood exaggerated her contribution to the day to day running of the business. It seems to me, for the reasons that I mentioned at the beginning of this judgment, that the exaggeration on this aspect of the case was on the part of Mr. Haywood.
In 1977 a further shop was acquired in Watergate Street in Chester. Mr. Haywood’s case, as presented in his witness statement, was that it was he alone who found this shop. Mrs. Haywood said that they visited the city together, that she initiated the discussion with the existing tenant and that Mr. Haywood then joined them and took over the discussion. In cross-examination Mr. Haywood did acknowledge that Mrs. Haywood had had some part in the discussion leading to the acquisition of the Chester shop. It was an interesting conflict of evidence upon which I prefer that of Mrs. Haywood. It seems to me that Mr. Haywood’s evidence on this point was again symptomatic of his tendency to underplay the role played by Mrs. Haywood in the business.
Mrs. Haywood told me also, and I accept, that she spent a whole day interviewing and selecting staff (paragraph 20 of her statement). In paragraph 27 of his statement Mr. Haywood said that the interviews were conducted by both of them. Thereafter, said Mrs. Haywood, she travelled most Wednesdays and Saturdays to Chester to take fresh stock, to deliver items that had been sold, to re-arrange displays and to assist in selling in the shop itself. Mr. Haywood agreed in his statement that the habit was for the two of them to go to Chester on Wednesdays and Saturdays. These features again support Mrs. Haywood’s case that the business was regarded as a joint one.
From all the above, it will be seen that I do not accept Mr. Haywood’s evidence that Mrs. Haywood’s "role at Sandiacre was nothing more than the Chester assistants did" (paragraph 28 of his witness statement).
It seems that the antique business prospered and in the late 1970s the parties acquired (this time in their joint names) certain building land at Hall Gate, Diseworth in Derbyshire for a total of £37,000. The purchase was funded by a bank loan of £15,000 from the Royal Bank of Scotland, a £6,500 private loan and as to the balance from the business. Mr. Haywood’s evidence was that a substantial part of this balance came from his separate joinery business. However, his evidence in other respects (e.g. paragraph 16 of his witness statement) indicated that he was fully active in the antiques trade from 1972 onwards. I think it more likely that it was the antiques business that contributed the necessary funds.
On part of the land that was acquired a six bedroom, detached house was constructed. This became known as Yew Tree House and the parties moved there, from the flat above the Sandiacre shop, in November 1980. This property remained their home until 1996 when they finally separated.
In August 1982 the Sandiacre property was sold and the shop there was closed down. The stock was moved to the Chester shop. By this time the antiques trade was declining, but the parties continued to work in acquiring and restoring items to be sold from the Chester shop. However, their interest diversified into the acquisition and renovation of houses. In paragraphs 24 to 27 of her witness statement, Mrs. Haywood deals with the properties concerned and says,
"I got involved in the heavy aspects of the work, including cleaning off old bricks, carrying roof tiles up to the roof and cement mixing as well as doing all the painting and decorating of the properties".
Mr. Haywood states (in paragraphs 33 and 34 of his statement),
"I accept that when the properties were otherwise complete Margaret did most of the decorating and cleaning out. However, she continued to be paid a wage from the business, which I come to in due course, and the financial value that she put into the properties did not outweigh the financial reward which she has already taken out of my business by way of income or income equivalent.
"34. I have already acknowledged that Margaret was not afraid of heavy work. I taught her to clean bricks and this was something she was happy to do when necessary …"
The reference to Mrs. Haywood receiving a wage is a little puzzling, but I think that this must be a reference to paragraph 37 of the statement where Mr. Haywood acknowledges that Mrs. Haywood did not receive a formal wage, but a notional wage was attributed to her, by accountancy sleight of hand, at the business’s year end. It was common evidence of the parties that each took money that was needed for personal or family expenditure: see the same paragraph of Mr. Haywood’s statement.
It seems to me that this evidence too is consistent with Mrs. Haywood continuing to perform an active and valuable role in this diversified business for which she received no formal remuneration. In cross-examination Mr. Haywood accepted that it was his view that, throughout their time together and their joint activity in business, Mrs. Haywood was adequately rewarded simply by living with him and having a good standard of living, financed from businesses that belonged to him alone. In answer to a question of my own he responded that he did not regard Mrs. Haywood as having any proprietary interest in the personal property gathered at their various homes, save for her clothes. It was submitted on his behalf that this answer related only to property that was valuable. However, the answer was given in quite general terms and it seems to me that this is precisely how Mr. Haywood regarded matters. For reasons that I set out below, I do not accept that that is the legal consequence of what happened.
As far as the chronology goes, I should mention that in October 1986 the Chester shop was closed down and the stock was moved to other shop premises, held again in Mr. Haywood’s name alone, at Castle Donnington. This shop was open less regularly than the other shops had been and was principally a weekend venture. It was Mrs. Haywood again who "manned" the shop when required. The shop finally closed in 1988, when the parties branched out afresh and a public house, the Old Swan at Worthington, Ashby de la Zouch, was acquired in the Defendant’s name. From that time, the antiques business was effectively dormant.
I come now to the question of the acquisition and treatment of the various items that are in dispute in the action. For the moment I leave aside those specific individual items that are said, for separate reasons, to belong absolutely to either party or to their daughter Julie and I turn to the bulk of the items which Mrs. Haywood contends are joint property for the reasons that I have summarised.
Mrs. Haywood says that, in the course of their relationship, she and/or Mr. Haywood would acquire items of furniture and ornament which they would identify as being for their joint use and enjoyment in their home. She deals with this in paragraph 37 of her statement. Obviously she cannot identify each individual relevant conversation, but her case is that they would acquire an item and in brief discussion would say something like "We’ll keep that for us" or "We’ll have that in the dining room" or "That’s what we’re looking for". Such comments, says Mrs. Haywood, would attribute such items to domestic use generally, apart from the stock in trade of the business. Mr. Haywood said, in paragraph 44 of his statement, that while he
"… may at times have used words indicating an intention to keep items at home and/or to use them it was only ever in the context of keeping it at home until there was either an opportunity to see it or it was needed to be moved back to one of our shops".
His attitude was, as he puts it himself, "everything in my life is for sale with the exception of my daughter".
I am quite satisfied that many of the items now in dispute were acquired and dealt with, as Mrs. Haywood contends, in such a way as to be appropriated to the parties’ domestic use and intended to be their joint property. They both worked hard in the business, taking their financial drawings informally as the need arose. Equally, they needed to furnish and otherwise equip their home. They had a mutual interest in antiques and it was entirely natural that they would extract from their purchases certain items that appealed to them personally for their own use. The photographs of many of the disputed items, arranged in domestic order either at Yew Tree House (or less often at the Sandiacre flat), illustrate this. This is particularly clear in the first 69 photographs in Bundle 4. A contrary finding would require me to conclude that the items so arranged and used in this way had found their way into position in the home by accident, without any discussion between the parties as to how their home was to be furnished. In my view that is too fanciful to be accepted. I do not accept Mr. Haywood’s evidence that all these items were simply stock, available for sale at his sole whim. (The schedule to Mrs. Haywood’s second witness statement identifies the items in the photographs to which I refer.)
Other items that form the subject of the claim are shown, in the photographs produced by Mrs. Haywood, placed more casually in the house. Mr. Haywood contends that this indicates that these were clearly kept simply as items of stock, stored at the parties’ home for convenience. Mrs. Haywood disputed this. She said that the other items claimed by her which were either so stored or which obviously required further work or restoration had also been identified as ultimately for domestic use, although the parties had not got round to doing the necessary work to some of them. Her position was that they were busy people and the needs of the business had to come first. It is also right to notice that the photographs of these further items were taken at about the time of the parties’ separation, some seven or eight years after the last of the shops had been closed. Also, by this time, stock from the Castle Donnington shop had been moved to the property, which no doubt contributed to a degree of disorder there. While it may be that the parties kept some items for the business at their home from time to time, I accept Mrs. Haywood’s evidence that these other items, as claimed by her, were either specifically identified for later domestic use and as the parties’ joint property or where this was not so those items were the fruits of a business that was in equity their joint property.
For reasons that I set out immediately below I also accept Mrs. Haywood’s evidence that what she called her "blue book" also recorded some of the items that had been appropriated to domestic use. The book contains entries by both parties. I would hold, therefore, that all the items so identified in that book were also the subject of specific agreement of the parties so to appropriate them as joint domestic property. In respect of any items comprised in this part of the claim which it is not possible to identify specifically from photographs 1 to 69 or the blue book, as being the subject of the type of specific agreement that I have mentioned, I would hold that such items were the fruits of the parties’ joint business and brought to their home as their joint property.
I turn now to the "blue book" that I have mentioned. This is a small hard-backed notebook. Regrettably, it was disclosed to Mr. Haywood’s solicitors very late before the trial, because of a mistake on the part of Mrs. Haywood’s solicitors as to its status for disclosure purposes. Copies of the entries in the book appear in Bundle 3 at tab 12. Much evidence and argument centred around what did and what did not appear in that book. Entries have been made in it, as I have stated, by both Mr. and Mrs. Haywood. Mrs. Haywood’s case was that this was a private reference record, kept to identify those items of furniture and ornament that had been taken out of the business for domestic use. Mr. Haywood’s case was that the book was a stock book of the business recording stock that was not subject to the "special VAT scheme" that applies to antiques and certain other goods for VAT purposes.
The "special scheme" was and, I believe, is an arrangement under the VAT legislation that enables dealers in antiques and certain other specified types of property to account for VAT on goods supplied through their business, not by reference to the sale price, but merely by reference to the margin difference between the price for which the goods were bought by the dealer and the price at which they are sold. I was told helpfully by Mr. Crawford for Mr. Haywood (and this was not in dispute) that the relevant scheme, as applicable at the start of the parties’ business, was available under Section 14 of the Finance Act 1972 and the provisions of regulations made thereunder, as contained (at some stage) in SI 1977/1796. I was shown these provisions and certain successors to them. The scheme has remained broadly similar throughout the relevant period and the two principal conditions for the applicability of the scheme are, first, that the relevant item must have been over 100 years old and must have been acquired either from someone who charged no tax on the purchase by the relevant dealer or had himself charged tax under the special scheme. Accordingly, it was said, on Mr. Haywood’s side, that this book was the stock book that recorded those few items that fell outside the special scheme for one reason or another. The business had a much bulkier stock book for "special scheme" stock, which is copied in trial bundle 2.
Mr. Crawford for Mr. Haywood, in his helpful address, submitted that his client’s case on this was likely to be right for the following reasons. First, he said the book was called a stock book. This is not quite accurate but the submission derived from an entry on the top line of the first page which reads, "Stock G/f clock £50-00 2.72". It was said that the word "Stock" was a description of all that followed below and not of the clock alone. Mrs. Haywood’s evidence was that the word "stock" was a mistake on her part and she had meant "Stoke". Whether this is right or not, I am satisfied that the word "Stock" was simply a description of the clock and not of all the items in the book. It is significant that the whole entry is crossed out, apparently at one time and in one hand, to indicate that the item had been disposed of. This shows clearly to me that, whatever the significance of the word, it was merely a description of the clock itself.
Mr. Crawford then submitted that this must have been a stock record because there had to be such a record of "non-special scheme" stock for accounting purposes. I agree that there should be such a record, but it does not follow that this was it. Mrs. Haywood’s evidence was that there were other accounting records that, in the end, were kept under the stairs at Yew Tree House. I accept that evidence, and it is clear that there must have been substantially more accounting records than have been available to me. I also accept Miss Bryant’s submission (for Mrs. Haywood) that the book was inadequate as a stock record for accounting purposes, if only because it failed to record details of sale dates or prices.
In relation to this book I also accept the following further submissions of Miss Bryant as indicating that this book was a record of business stock. If it was a stock record and it had gone missing, it is surprising that Mr. Haywood did not raise it anywhere in his evidence by saying that there had been such a book. It also appears to be a very scanty record of such stock to cover a period from 1972 to 1988. Further, the book also omits two items which, as stock, would not have been "special scheme" items: namely two carpets which are items 90 and 166 in Mrs. Haywood’s schedule. It also includes two items that would have been special scheme items, namely a painting and a credenza, which appear on the penultimate page of the book (copied at bundle 3 tab 12 page 57).
Such inaccuracies and omissions as there may be would have been unlikely in a formal business record and would be more characteristic of an informal domestic reference book, such as Mrs. Haywood says that this was. It is also very surprising, if this is indeed a stock record, that it only shows three items of relevant stock as having been acquired between the end of 1979 and the end of 1985. Moreover, in this context it is to be recalled that this was a period during part of which both the Sandiacre and Chester shops were operating and substantially more acquisitions of this type might have been expected.
Before turning to certain other items to which other considerations apply and to Mr. Haywood’s counterclaim, I should set out the basis upon which I think that it is right to regard the chattels acquired by the fruits of the antiques business as being the joint property of the parties, quite apart from any specific agreement about them.
I was taken to two well known decisions of the Court of Appeal concerning businesses conducted by husband and wife. Those cases were Nixon v Nixon  1 WLR 1676 and Re Cummins  Ch. 62. So far as I am aware these cases have never been doubted and are, of course, binding on me. It is not disputed that they apply equally to parties who are not married. In the first case, Lord Denning MR. expressed the principle in this way:
"What is the position of a wife who helps in the business? Up and down the country, a man’s wife helps her husband in the business. She serves in the shop. He does the travelling around. If the shop and business belonged to him before they were married, no doubt it will remain his after they marry. But she by her work afterwards should get some interest in it. Not perhaps an equal share, but some share. If they acquire the shop and business after they marry - and acquire it by their joint efforts - then it is their joint property, no matter that it is taken in the husband’s name. In such a case, when she works in the business afterwards, she becomes virtually a partner in it - so far as the two of them are concerned - and she is entitled, prima facie, to an equal share in it.
Test it this way: if the wife had gone out to work and had earned wages which she brought into the family pool - out of which the shop and business were bought - she would certainly be entitled to a share. She should be in just as good a position when she serves in the shop and receives no wages, but the profits go into the business. The wife’s services are equivalent to a financial contribution. And it has repeatedly been held that when a wife makes a substantial financial contribution, she gets an interest in the asset that is acquired …"
(at p. 1679 F-G)
Cross LJ puts it this way:
"If a husband runs a business while the wife normally does nothing but run the house, then the fact that she occasionally helps her husband out by, for instance, watching the shop while he is temporarily away will not give her a claim in equity to an interest in the business asset. If on the other hand, the husband, instead of paying an employee to help him run the business, asks his wife to work in the business every day full time and pays her no wages, then in my judgment (in the absence, of course, of some agreement to the contrary) she may well acquire an interest in the business assets; and in that connection it is irrelevant whether as against third parties she would be liable as a partner for the business debts. Of course, it may be difficult in some cases to say on which side of the line the case falls, but I see no such difficulty here …"
(at p. 1682 D-E)
Like Cross LJ, I can see no difficulty in deciding on which side of the line the present case falls. It seems to me to be clear that this case is in all relevant aspects identical to Nixon and the same result follows, namely that Mrs. Haywood would have been and is entitled to equal shares to those items of property acquired with the fruits of the business, even if it is not possible to identify a specific agreement having been made in respect of any individual item.
I do not believe that these cases are relevantly affected by the decision of the House of Lords
in Lloyds Bank v Rosset  AC 107. I recognise the importance of the "first and fundamental question" identified by Lord Bridge in his speech in that case and the contrasting situations referred to by him in the lines that follow (see at pp. 132 E to 133 B). I also note at the end of that passage the remarks to which Mr. Crawford drew specific attention, where Lord Bridge said,
"In sharp contrast with this situation …" [where there has been an express agreement] "… is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an agreement if they had applied their minds to the question, and where the court must rely on the conduct of the parties both as the basis to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do".
(at pp. 132H to 133B)
It seems to me that the analysis of the Court of Appeal in Nixon would mean that the contributions by Mrs. Nixon and Mrs. Haywood were "direct contributions to the purchase price": see again per Lord Denning MR. in Nixon at p. 1679 H. Moreover, Nixon, Cummins and Rosset were all cited to Waite J (as he then was) in Hammond v Mitchell  1 WLR 1127, where the learned judge applied Nixon, and another case which followed it (Muetzel v Muetzel  1 WLR 1138), but found that the facts of the case before him did not give rise to a relevant interest in the Claimant. He noted that the earlier cases had not been cited in Rosset, but he did not say that anything in the later case had affected the relevant principles: see at p. 1138.
The matters set out above deal with the bulk of the items in issue on Mrs. Haywood’s claim. As I find it, that claim succeeds.
There remain in issue on the claim four individual items, two of which are claimed as having been the property of Mrs. Haywood and the other two are claimed absolutely by Mr. Haywood in circumstances rather different to his resistance to Mrs. Haywood’s main claim.
Mrs. Haywood claims that items 135 and 181 in her schedule were the subjects of absolute gifts to her. Both items were jardinières, which have now been sold. Item 135 is shown in photograph 76. There is no photograph of the other. Mrs. Haywood says that the former item was given to her on the occasion of her 35th birthday on 31 March 1980. The schedule records it as having been originally purchased in August 1979. Mr. Haywood accepted that it had been at the parties’ home from 1979 until he sold it within the last few months. He said in evidence that he never gave presents in the ordinary course. Mrs. Haywood accepts this and Mr. Haywood denied the suggestion put to him that Mrs. Haywood had moaned to him about this habit shortly before the relevant birthday, which had caused him (exceptionally) to present her with the first of the jardinières. For my part, I accept Mrs. Haywood’s evidence on this. I see no reason why she would make a specific point about this item, apart from the bulk of the items in issue, if the facts were not as she states. It is likely that she would have remembered this unwonted act of generosity and that Mr. Haywood should have forgotten it, as being to him totally outside his normal practice. For the same reasons, I accept also Mrs. Haywood’s evidence about item 181.
Mr. Haywood claims items 261 (a Belling cooker) and 262 (a bathroom suite) as his own. He says that each were assets of his building business. Mrs. Haywood says both items were acquired for Yew Tree House and fall into the same category as items which are the subject of her main claim. I do not think that they can be treated in exactly the same way. They were acquired late in the parties’ relationship when matters between the two were already strained. Further, they were not antiques and were never brought into the house before the parties separated. Moreover, the joint business had long since ceased. I do not think that the evidence is sufficient to attribute an intention on the part of Mr. and Mrs. Haywood to treat these items as joint property. Accordingly, this part of Mrs. Haywood’s claim fails.
I turn finally to the counterclaim. In this claim, Mr. Haywood asks for the return of four items of property which he says originally derived from the antiques business and which he says were taken by Mrs. Haywood when the parties separated. These are some items of Crown Derby porcelain, some silver candlesticks, some jewellery (in fact two bracelets and a pendant) and an antique jam pan. Mrs. Haywood acknowledges that the candlesticks are properly joint property, while Mr. Haywood says they are his. For the reasons already given, I find that these candlesticks are the joint property of both. I find that the same is true of the jam pan and of the Crown Derby porcelain on which I did not find that Mrs. Haywood’s evidence of a common intention for these to be her sole property as convincing as it was in relation to the two jardinières dealt with above. The bracelets and pendant are, however, a different matter. They had been worn by Mrs. Haywood regularly for many years as part of her apparel. This must have been apparent to Mr. Haywood. I think in happier times Mr. Haywood would not have regarded these as partly his. They had been appropriated to Mrs. Haywood’s sole use in much the same way as the domestic antiques had been appropriated to the use of them both. I find that those items belong to Mrs. Haywood alone.
The remaining chattels in the counterclaim consist of items that derived from the public house premises. They are principally items of domestic equipment such as curtains, a coffee machine, a fridge/freezer, a microwave oven etc. Mr. Haywood’s case is that these goods were in the public house when he last looked and were gone after Mrs. Haywood and Julie left in 1996. Mrs. Haywood denies that she has the goods and I decline, in the light of that evidence to draw the inference that she does in fact have them.
The last point on the counterclaim is in respect of a sum of £1078, drawn by Mrs. Haywood from Mr. Haywood’s bank account at the time of their final parting. The account was in Mr. Haywood’s name but Mrs. Haywood had authority to draw upon it. The undisputed evidence was that the money entering this account was from a loan facility account in the names of both parties. Mrs. Haywood was unable to give a satisfactory reason for identifying this as being the precise sum that she required, when in fact it was the sum that took the account to its overdraft limit. Having regard to its source, it seems to me that this was joint money and Mrs. Haywood must repay half of it.
The result is, therefore, that Mrs. Haywood’s claim that the bulk of the disputed items were joint property, intended for domestic use, succeeds. I also find that the two jardinières which she says were gifts to her were such gifts and that the jewellery items mentioned in the counterclaim schedule are also her sole property. I find that the Belling cooker and the bathroom suite belong to Mr. Haywood and that he is entitled to an order for repayment to him of £539-00, being half of the sum of £1078 drawn by Mrs. Haywood from the bank account. The Crown Derby porcelain, the silver candlesticks and the jam pan are joint property, but the remainder of the counterclaim, relating to the public house chattels, fails.