Jones v Kernott
[2011] UKSC 17 at para 13if the task is embarked upon, it is to ascertain the parties’ common intentions as to what their shares in the property would be, in the light of their whole course of conduct in relation to it.110.My task is to establish if the evidence shows that common intention. I do so against the background of the documents signed by W which describe her as the beneficial owner of the new flat.111.I am particularly swayed by the facts and matters surrounding the payments of money. I am less persuaded by the documentary evidence for the reasons that I have given.112.I found B’s evidence reliable, and it is the agreement between B and W which is at the core of this case. In particular, I can see no reason:i)Why the funds should have come out of B’s personal account which contained his taxed income if the monies were part of a family distribution or a reward for her endeavours in the family business.ii)If W had control of the finances, why she would be taking money from B’s personal account rather than from the business accounts to which she had access.iii)If the money was a gift for it not to have been paid to W’s account rather than direct into XYZ’s account.iv)Why B should be passing over to W the very money which he had set aside in his own account to buy in his own name a property in 2017.v)Why B would be making a gift to W at the very time that the marriage was ending and divorce proceedings in prospect.113.In additionvi)The absence of the donation agreement is striking, especially when compared with the 2016 gift.vii)W had in her own bank account the available funds to purchase the flat. Why should she be accessing B’s funds in those circumstances?114.I have taken into account that the common intention that I find to have existed between W and B that he alone was to be the beneficial owner of the new flat is uncorroborated by documentary evidence. There would be an obvious incentive for a creation by them of a self-serving argument, but the surrounding circumstances to which I have referred give significant support to their evidence on these issues and which I found to be persuasive.115.I take into account also the inconsistencies which appear in both H’s case and W’s case. I have factored them into my thinking as I have reached the conclusion that I am satisfied B has discharged the burden of proof upon him and that it was the common intention of W and B that B alone should hold the beneficial interest in the new flat and that accordingly W holds the premises on trust for him.116.In the circumstances it is not necessary for me to go further into the law of resulting trusts.Post-script117.On handing down this judgment, I invited submissions as to whether or not there should be anonymisation or naming of Mr C and XYZ, of whose conduct I have been so critical. I am grateful for the representations made on behalf of Mr C and XYZ. 118.As is apparent, I have decided that they should not be identified. My reasons in brief are as follows:I do not think that it would be right to name them when no party or other witness is to be identified.I accept that it would not be fair to name only Mr C when others in the firm must share the blame.It would cause disproportionate damage to Mr C’s reputation, particularly when his lapses and those of XYZ are being otherwise addressed.I accept that his contrition is genuine and that at no stage of his evidence has he sought to evade his responsibilities.