[This is a modern Land Law comment – sorry legal history chums!]
Amin v Amin  EWHC 2675 (Ch) is a recent constructive trusts case, a judgment by Nugee LJ on appeal from the London county court.
It has some interesting aspects from the point of view of explanation of ‘the rules’ on common intention constructive trusts (nothing especially new, but nicely put) but also a good one to read to get an idea of the sorts of disputes which this body of law may be called upon to handle, and also issues of practical case-crafting and handling of evidence, at different stages of proceedings.
The basic facts of the dispute were that Mrs Amin was sole legal owner of a house in London. She regarded herself as having the whole legal and equitable interest in it. Her husband, Mr Amin, and her sons, Raja and Zubaire, claimed that they were entitled to an equitable interest by way of a common intention constructive trust. (The dispute initially arose as a possession proceeding by Mrs Amin, and a counter-claim by Mr Amin and the sons for a declaration of their interest, and thus entitlement to stay). This way of proceeding meant that it was a virtual ‘all or nothing’ case – Mrs Amin claimed everything, and Mr Amin and the sons counter-claimed 100% of the equitable interest.The county court judge decided in favour of Mr Amin and the sons – the house was held by Mrs Amin on trust for them, and she must transfer the legal title to them. She appealed.
The judgment, which has just appeared on BAILI, describes quite a number of property dealings within a large family, and is of considerable interest from a ‘law meets culture’ point of view. One fact to bear in mind, and which is of some relevance, is that the Amin parents were not officially married as far as English law was concerned. They had been through a religious form of marriage, the nikkah, but technically were not married. As Land Law students know, there is a fairly stark line between cases involving married (or once-married) couples and those who are, strictly, ‘cohabitants’. The Amins would surely not have seen themselves in the same bracket as those involved in informal living together situations, but in some ways, Land Law does (certainly a factor to consider in relation to suggestions for reform of cohabitation/property law). There is also some discussion of what may look to modern Land Law students like an (allegedly) unusual or old-fashioned financial relationship between the parties, in which Mr Amin ‘did not allow’ Mrs Amin to have her own bank account. I have often been told, when discussing cases like Burns v Burns that modern female cohabitants would not end up in such a dependent financial position. Perhaps we might reconsider that.
Nugee LJ provides a good summary of where he thinks the law is on common intention constructive trusts, and what has to be shown, by whom. It may be picked up as blurring some boundaries but (heretically, I know) I am less interested in that. FWIW, the judge had applied the Jones v Kernott  UKSC 53 test – using financial and other criteria to decide ‘what shares (if any) were intended’. (Land Law students will notice that this is drawing together two questions which we have tended to keep apart in teaching – the ‘is there an interest’ question, and the ‘if so, how much’ question). The case put by Mrs Amin’s lawyer in this appeal included a strong idea of it being wrong not to make separate, overt findings on all of the separate elements as to whether there a common intention at all, and if so what was its nature, and whether there was appropriate detrimental reliance. We have some further discussion on the (paper thin in my view- I am very skeptical about the idea of objective deduction in these cases) distinction between imputing and inferring intentions. There is a nice quotable quote on the supposed separation of ‘is there a CICT’ and ‘how much of a share do people get?’: ‘I do not think the two stages can always be neatly distinguished’  – the point is that the same evidence may well cover both bits:  ‘it seems to me to make no sense to try and make a sharp divide between evidence that enables an inference to be made as to their common intention that the beneficial interests should not follow the legal ownership, and evidence that enables an inference to be made as to what they intended those beneficial interests to be. Those questions are necessarily bound up together.’ Hackles will no doubt rise at this, but, really, it is a common dynamic in many areas of law, including Land Law, to move back and forth between ‘steppy’ tests and ‘holistic’ (cue whale music …) tests.
What I find more interesting and thought-provoking are the issues concerning the way in which the case was presented, and the evidence. Since this was an appeal, there were already limits on what could be done by way of going over the evidence, and deciding whether there was anything wrong with the initial decision. Greater limitations were imposed by a decision by Mrs Amin not to provide a transcript of oral evidence from the first hearing. Nugee LJ remarked on this more than once. He also highlighted the original judge’s doubts about Mrs Amin’s allegations of domestic abuse [8.11] though these were ‘not directly relevant to the proceedings’. Again, that might bear some exploration – what is relevant to proceedings is, to some extent, a matter of choice and perspective. Comment on the offences of false accounting of another witness were also mentioned (I do wonder whether people realise this sort of public and permanent comment will be made when they agree to be witnesses. I suppose they do).
I can see that, in such cases, judges do have to make comments on the credit-worthiness of witness/parties, but it is always a rather uncomfortable thing. I am sure that I would feel deeply insulted and mortified to see myself referred to as ‘[not having made] a good witness’ as was the case with Mrs Amin here, a description based on the fact that, in the initial judgment,
‘The Judge found her oral evidence to be confused and imprecise, and referred to her complete inability at times to recall any precise detail contained in her witness statement – something that happened so frequently that he formed the view that it was almost as if the statement had been written for her by someone else’. [at 8]
It is also interesting to note the nature of the outcome (100% equity to Mr Amin – now deceased – and the sons) was the logical outcome of the way the case was put. Though this was portrayed as particularly harsh by Mrs Amin’s lawyer, both sides had gone for an ‘all or nothing’ approach, and neither had suggested a plan to share out the equitable interest, so, if Mrs Amin lost, this was always on the cards (though the practical effect could be less harsh, as she could seek indemnity from the beneficiaries on the mortgage payments which she, as legal owner, was still liable to pay).
So – an interesting case in a number of respects: legal, evidential, cultural. It is a bit out of the ordinary for such cases in dealing with a wider family group, whose relations are both personal and financial. It also leaves some untied ends relating to the position of the two Amin daughters, whose interests may well be affected. All in all, a messy situation meets an unsatisfactory area of law. Good luck with it, Law students of England and Wales.