Kalaivani Jaipal Kirishani v George Major

This is an appeal from an order of HHJ Gerald sitting in the County Court at Central London dated 23rd December 2024 in which he dismissed two of three claims made by Ms Kirishana as claimant against her former cohabitee Mr Major. The claims were for a contribution to household and other domestic expenses, which seem mainly to have comprised holiday expenses (at least according to the judgment – “the Expenses Claim”) and a claim for moneys paid in respect of his occupation of her property (“the Rent Claim”). This appeal concerns that dismissal. He allowed a third claim, and there is no appeal from that.

At the heart of this appeal is the question of the extent to which the court will, or will not, infer an intention to create contractual relations in relation to dealings between unmarried cohabitees, and whether or not it is right to find a presumption for cohabitees akin to what is said to be a presumption against an intention to create legal relations arising in respect of (for example) dealings between husband and wife.

There is one unfortunate piece of procedural history in this matter. There was a previous trial which went to judgment, but that decision was set aside because of some incapacity and litigation friend issues (which were not developed before me - it was unnecessary to do so). The trial in front of HHJ Gerald was therefore the second trial of this case. Bearing in mind the amounts at stake (about £48,000 in all, including the non-appealed third claim) that is unfortunate, and it is even more unfortunate that this appeal has been added to the history. The appeal is over, effectively, what is now a sum of about £38,000 plus some interest. Obviously the costs now vastly exceed the sums at stake. However, the appeal is now before me and it has to be dealt with.

Ms Kirishana was represented by Mr Jian Jun Liew; Mr Major was represented by Mr Theo Lester. I am grateful for their thorough and well-presented submissions.

I can take the principal facts from the judgment below; it may be necessary to repeat them or supplement this account with other facts during the course of the development of this judgment.

The two parties entered into a relationship in mid-2016 and co-habited in Ms Kirishana’s flat until 14th October 2018 when Ms Kirishana terminated the relationship after what she said was an assault on her (as the judge referred to it). Notwithstanding the termination, Mr Major remained in her flat for a considerable time thereafter, largely because Ms Kirishana was away travelling and was not spending much time there.

The third of the claims identified above, and as to which there is no appeal, was in relation to a sum of £8,888 which Ms Kirishana gave to Mr Major to invest. I will call this the Investment Claim. The judge recorded that it was clearly agreed that it would be repaid, and he found that it should be. He remarked (paragraph 5) that this was the only category of claim in which money passed from one of the couple to the other.

The Expenses Claim was said in the judgment to be approximately £20,000. This represented the net outlay of expenditure by Ms Kirishana principally in respect of holidays and trips which the couple took together during their relationship. There was what the judge described as an “agreement or accommodation” between the two of them that when they went on holiday together they would both contribute equally to the expenses. He found:

Every time the couple went on holiday Ms Kirishana would keep a spreadsheet listing expenditure, which she would email to Mr Major who would on occasions amend or correct. Ms Kirishana’s pleaded case was that there was an express agreement about sharing this expenditure, but she resiled from this in her oral evidence. The judge’s finding was as just set out and that:

The third element was the Rent Claim. It was agreed between the couple from June 2017 that Mr Major would pay £1,000 “for occupying her home” (para 11). He paid 3 months worth of £1,000 but then no more. By the end of the relevant period the sum unpaid in respect of this claim was found to be £16,000. Mr Major himself added these sums to the spreadsheet on one occasion when it was sent to him.

Those are the claims and their nature. The judge made further findings about the relationship as follows. They have to be seen against the background that the judge proceeded from a presumption that arrangements between co-habiting couples fell into the category of promises binding in good faith only as family arrangements. This is a key point in the case to which I will return. For the moment I will set out the judge’s key findings on the facts. They were:

The facts set out above appear in various parts of the judgment as the judge considered the result in his case. The judge started his reasoning towards his final conclusion from the well-known cases (identified below) governing what he treated as a presumption against an intention to create legal relations which was said to operate in the case of husbands and wives and applied it to “an unmarried, co-habiting couple” (paragraph 18) or to “parties who are in a budding relationship, in an established relationship, or in a relationship which is intended and hoped to be long-term and fruitful” (paragraph 21).

Starting from that point, the judge rationalised the presumption by saying:

In those passages I have highlighted references in relation to which a particular point in this appeal is directed. He then reviewed various factors in the evidence, which are referred to above, emphasising that nothing in the relationship suggested the possibility that Ms Kirishana would sue if she wasn’t paid. He found:

As a result he dismissed both claims.

Permission was given by Cawson J for one of the two Grounds in the Grounds of Appeal. That Ground broke down into three elements. The first is that the judge erred in finding there was no intention to create legal relations. This is expressed broadly in Ground 2A, but it was broken down in submissions into two elements - the judge wrongly applied a presumption of non-intention to create legal relations, and then wrongly required too high a standard of evidence required to rebut the presumption. The second element (Ground 2B) was a failure to give reasons - it is said that while the judge purported to give some reasons for his finding in relation to the Expenses Claim, he failed to give any in relation the Rent Claim. There was a third element (Ground 2C) which was that the judge’s conclusion was one that was not open to him on the facts. This was not advanced by Mr Liew at the hearing.

I therefore deal only with Grounds 2A and 2B

As appears above, the judge started from the position of a presumption against an intention to create legal relations on the footing that he understood it to be common ground that there was such a presumption (in effect), and then found that there was insufficient evidence to rebut it. Ms Kirishana’s initial skeleton argument on this appeal started from the presumption and based its argument on the strength of evidence point. However, having considered the starting point further with the benefit of a proper study of the skeleton arguments and transcripts, Mr Liew (who was not trial counsel) sought to resile from what seems to have been recorded as a sort of implied concession, on the footing that Ms Kirishana did not in fact accept the application of the presumption. Mr Liew accepted that this was a new point, but after hearing him and satisfying myself that there was something in the point, and having heard Mr Lester, who frankly admitted that he was in a position to meet the revised arguments that would arise from the point’s coming in, I decided that it would be right to allow Mr Liew to raise the point. That was capable of opening up argument on the extent to which the “family arrangement” cases on intention to create legal relations, and in particular their apparent presumption, were applicable to the case of co-habiting couples and in particular the cohabiting couple in this case.

It would appear that Mr Liew is right in saying that the judge was recording a common position that was not entirely accurate. At paragraph 17 the judge recorded the question before him before making an important observation (in this context) in paragraph 18:

Those opening words in paragraph 18 contain what Mr Liew says the judge got wrong, along with his remarks in paragraph 21. In that paragraph, in the course of considering words in Jones v Padavatton about dealings between husband and wife and what is in effect a presumption or starting point of the absence of contractual intention in that context, the judge said:

That again suggested some common ground between the parties on the point.

A scrutiny of the material before the judge below indicates that that is not really correct. In paragraph 95 of Ms Kirishana’s opening skeleton below counsel set out material from the family cases and paragraph 96 propounded a purely objective test for whether an agreement was intended to create legal relations. It ended with the sentence:

In Mr Lester’s final submissions below he read passages from Balfour v Balfour to the judge who observed:

Mr Lester then went on to argue that it should be applicable in this case, but this passage demonstrates that the judge had not at that stage appreciated any common ground on the point. When counsel for Ms Kirishana made his oral submissions he was challenged by the judge about what the judge apparently saw as the “domestic” nature of the arrangement between the parties. Counsel advocated for an objective test in those circumstances, which is inconsistent with an acceptance of the application of any presumption, and at page 74 of the transcript (where counsel turned to the law) he actually drew the attention of the judge to his skeleton argument and in particular (for these purposes) paragraphs 95 and 96. The judge then read those paragraphs to himself, which would have included the sentence set out above.

What emerges from that is that the common ground which the judge seems to have proceeded on in his judgment did not exist. It appears that one side was relying on a presumption, and the other side resisted that. To that extent, therefore, there is a flaw in the reasoning in the judgment.

Mr Lester, for respondent to this appeal, nonetheless seeks to uphold the existence of the presumption on which the judgment seems to proceed. Mr Liew, for Ms Kirishana, challenges this and claims there is nothing in authority which grafts cohabitation cases on to the more traditional family arrangement cases, and it would be wrong to do so now. Accordingly it is necessary for me to embark on a consideration of the extent to which the presumption exists and the extent to which it is capable of informing the result in the present case.

Mr Lester supported the existence of the presumption in what he preferred to call a domestic environment rather than using the concept of cohabitation. He proposed other formulations as well, but at the heart of his submissions was a contrast between commercial situations, in which an intention to create contractual relations will be presumed, and domestic situations, where it will not, and where there is a presumption the other way. In the domestic environment one has to look at the facts properly to see whether it was the sort of domestic environment which would give rise to the presumption against the intention. The present case, on its facts, fell into that category and the judge was right to start from the presumption that he did even though it was described differently. He submitted one could use the words “cohabitees” instead, but one still had to look at the facts of the relationship. The factors that drove the court to its conclusion in Balfour (to which I will come) are equally applicable to various types of domestic arrangements other than marriages (and civil partnerships). He sought to caution me, on the facts of this case, against restricting the categories where the presumption might operate by removing (or not allowing the admission of) cohabitation as an area where the presumption against legal relations might apply.

Mr Liew submitted that it would be wrong to apply the Balfour presumption to cohabitees. There is no authority which directly compels me to do so, and when considering the question of intention to create legal relations Chitty on Contracts, which considers various categories of people in respect of whom the question might arise, the editors do not (Mr Liew says) suggest that the presumption applies to cohabitees; contrast the suggestion of the editors that it does arise in relation to spouses and (probably) those in a civil partnership (see paragraphs 4-244 and following). This is said to track the circumstances in which the presumption of advancement arises - it applies between spouses but not between cohabitees (see Stack v Dowden [2007] AC 432 at para 111).

A consideration of this topic needs to start with Balfour v Balfour [1919] 2 KB 571, which is where the husband/wife presumption is said to flow from. As Lord Upjohn observed in Pettitt v Pettitt [1970] AC 777 at p 816:

And while he considered that the facts stretched the doctrine (presumption) to its limits, it can be considered that the presumption in general terms has the blessing of the highest court (or at least one member of it).

In Balfour a husband agreed to pay a sum for the maintenance of his wife in consideration (exchange) for her agreeing not call on further support from him. The Court of Appeal held that this agreement was not enforceable as a contract. Warrington LJ held that on the facts it would be absurd to suppose that the parties intended a contract. The only thing he said of more general application was his description of the two possible arguments in the case:

From that it can be inferred that “merely domestic” arrangements would generally not give rise to a contract. That is a form of presumption. Duke LJ referred to the absurdity of “mutual promises made in the ordinary domestic relationship of husband and wife” giving rise to a contract (p577).

The main elaboration of the idea came from Atkin LJ. At p578 he posited various arrangements between husband and wife:

Although he did not use the word “presumption”, what he did was effectively to create one in respect of domestic arrangements in the domestic environment. Like the other two members of the court, he used the word and concept “domestic”. It is a useful word to use in this context.

The word “presumption” was used in Jones v Padavatton [1969] 1 WLR 328. That was a case between mother and daughter and arrangements for the upkeep of the latter by the former. The defendant mother relied on Balfour to resist the daughter’s claims. When considering the matter Salmon LJ referred to a “presumption” and its rationale, having first set out the nature of the inquiry:

Fenton Atkinson LJ posed the question in this way, which is illuminating as to the sort of situations in which the presumption might arise:

The emphasised words demonstrate the potential width of the circumstances in which a presumption (not a word used by Fenton Atkinson LJ) might arise - they are not confined to marital relationships. Danckwerts LJ also set a wider context than husband and wife:

These passages inform the question of whether the presumption (I will treat it as such) should apply to those in non-marital cohabitational arrangements. The arrangements which were considered by the judges took place within understood relationships which were considered to have established characteristics. When describing the circumstances which justified the conclusion that the parties did not intend to enter into legal relations the court has assumed relationships with certain characteristics - relationships which were founded in “mutual trust and affection” (Jones). The presumption derives from “experience of life and human nature”. That experience dictates that in a home the “domestic” arrangements usually do not take place under a legal rights umbrella. That is not how people work in a typical domestic or family background.

So it is the nature of the relationship which is important, not the fact that the parties have gone through a ceremony of marriage or civil partnership. Marriages (and, I would say, in line with the views of the editors of Chitty, civil partnerships) are likely to have common characteristics relevant to an intention to create legal relations in connection with “domestic” arrangements so that the presumption would be likely to apply to many or most of them. That is because of the nature of the relationship itself in everyday life terms, not just because one can describe the couple by virtue of the fact that they have gone through some ceremony. The same sort of considerations may also apply to arrangements between other members of the family, where the basis of the relationship is likely to be based on non-commercial matters. Hence the reference to other family relationships, where common characteristics are present.

The same cannot clearly be said about what are described as cohabitees. The words “cohabitation” and “cohabitees” are capable of describing a wide range of relationships from those very similar to a traditional marriage at one end to those such students or others sharing accommodation purely for the sake of convenience at the other (though the label may be slightly less appropriately applied to the latter). It is not obvious that the factors which generate the presumption in the traditional relationships exist merely from cohabitation. That means that one cannot simply apply the label “cohabitees” and then apply the presumption. It does not have the necessary clarity as a starting point for considering whether the presumption applies.

Accordingly, saying that the presumption applies to cohabitees as such would not be correct. It all depends on the relationship behind the cohabitation. The test for the intention to create legal relations is an objective one:

The presumption, where it exists, reflects that sort of inquiry but provides a prima facie answer based on a generalised objective view of the circumstances of the relationship. It exists because of the circumstances of the relationship, not because of the label applied to it. Applying that to cohabitation relationships, some of them will demonstrate all of the same sort of characteristics of domesticity which have led courts to apply the presumption to a husband/wife relationship - the sort of relationship where dealings in relation to domestic matters are governed by mutual trust and affection in the same way in which marital relationships (in general) are so governed. To those it would be right to apply the presumption. Others will or may not demonstrate analogous features, in which case the presumption may not apply. It is impossible to generalise across all instances of cohabitation.

I acknowledge that in any individual case, ascertaining whether the presumption exists may not differ much from an inquiry in the individual case as to whether objectively speaking there was an intention to create legal relations against the given factual background. But it does provide a useful starting point in relation to “domestic” relations.

Having said all that, it is now necessary to apply it to the judgment. I have already determined that HHJ Gerald erred insofar as he proceeded on the basis that both parties accepted that the presumption applied to cohabitation (in general terms). They did not. However, a closer scrutiny of the judgment shows that he apparently proceeded to make his own finding about the application of the presumption on the facts of the case before him. He did so in paragraph 24, having made some general findings about the relationship before him:

Thus he found that on the basis of the evidence this was the sort of relationship to which the presumption would apply. He would be entitled to that view if the evidence before him justified it - if it was evidence of the sort of domestic relationship in which the presumption would apply. He does not set out much detail of the relationship, but it is clear enough that he found it had the characteristics which would justify the presumption in this case. He mentioned his views of the relationship a number of times, for example:

In those passages he is obviously describing the relationship before him. In paragraph 25 he said:

And in paragraphs 34 and 39:

It is therefore apparent that, having considered all the evidence before him, the judge came to the conclusion that this was a cohabitation arrangement with the known qualities which gave rise to the presumption relied on. In order to undermine those findings about the relationship on an appeal it would be necessary to go through the evidence (or some if it) to establish that that was a view that was not open to him. No attempt was made to do that in this appeal. That is not surprising. The view reached by the judge was the sort of view which a trial judge reaches after hearing all the evidence with all its subtleties. It would be very difficult to challenge that on appeal.

It follows that although the judge erred in thinking that the parties were at one on the application of the presumption, he reached his own view on it anyway. He was entitled to find for the presumption if the evidence justified it, the evidence that he summarises on the point did justify it, and his decision on that was one that cannot be impeached on this appeal.

That brings me to the other element of Ground 2A, which is that the judge applied too high a standard to the evidence required to rebut the presumption. This is founded on the judge’s expression as to the evidence required in three places in the judgment, two of which have already appeared:

Mr Liew’s point on this was that the three emphasised passages over-state what is required to rebut the presumption where it applies. None of the cases establish that such a high hurdle or heavy burden is necessary to mount a successful challenge to the presumption, and there is no reason in principle why such a standard would be required. The presumption is effectively a question of fact, and it is not one requiring anything special to overcome it.

I would agree with Mr Liew that rebutting the presumption does not require a particularly high standard of evidence, and if that is what the judge was really saying then there would be a case for saying that he erred. There is nothing in the authorities which indicates that the presumption in these sort of cases is a particularly strong one requiring particularly strong evidence to rebut it. What is required is “enough” evidence (that is my formulation), which is not actually a particularly helpful formulation though it is more appropriate than saying a high standard is required. Having said that, bearing in mind that the court is starting from a given point on the issue in question, it is undoubtedly the case that evidence of some force must be provided in order to induce the court to move from that position. Flimsy evidence will not do.

When properly viewed in context, and bearing in mind that this was an ex tempore judgment, I do not consider that the judge was really over-stating the level of evidence required. In paragraph 15 and 16 the judge identified the right question in terms which did not suggest the application of any extreme position:

He then cited Balfour and Jones as being the relevant authorities, including this sentence from Jones:

There is nothing there to suggest a particularly high burden, and the judge should be taken to be aware of that. Paragraph 24 of the judgment below suggests an awareness that clear evidence is required, but no more:

There is nothing wrong with that formulation.

Taking that point, and the tenor and direction of the judgment as a whole, I do not think that the judge was saying anything more than that the burden of overcoming the presumption is not something that can be lightly discharged, and that would be the correct view. I do not think he is saying anything more than that. I do not consider his more extreme formulations (which with hindsight he might not have adopted) suggest that he was approaching the whole exercise with the wrong test in mind. Paragraph 24, and the rest of the judgment, suggest the correct approach.

It follows from all the above that Ground 2A fails.

This Ground stems from the structure of the judgment and what is said to be the judge giving reasons for dismissing the Expenses Claim but not for dismissing the Rent Claim. The Ground says:

The structure of the judgment has to be considered. It is divided into headings and sections as follows. First there is an introduction. Then there are sections dealing with each of what the judge described as the first, second and third elements, being the Investment Claim (not the subject of this appeal), the Expenses Claim and the Rent Claim respectively. He describes the facts relating to each element in their respective sections. Then he has a heading “Generally, on second and third elements [sic]: was there an intention to create legal relations”, in which he first identifies the question and then sets out the law from Balfour and Jones. He then comes to a conclusion at the end of paragraph 24:

This indicates that he is about to deal with both elements, but it is in the absence of a reference to the Rent Claim in what follows, until a final conclusory paragraph referring to both claims, that is relied on by Mr Liew, contrasting that with express references to the Expenses claim. It is therefore necessary to consider closely what the judge did say.

Paragraph 25 announces that his reasons were as he was about to set out – there were three of them, his first, second and third. First, he referred to the nature of the relationship and its intention to be long-lasting (paragraphs 24 and 25). Second, he referred to the inequality of the parties’ positions, with the claimant knowing that she was going to have to financially carry the defendant for a time. In this context he referred to the vacations:

Paragraphs 30 and 31 refer to the spreadsheets and the failure to accompany them with a demand, which he regarded as significant, and paragraph 32 says that his conclusions about that reinforced his view that the arrangement was not intended to be legally binding.

Third, he referred to the contrast between a specific pleading of an express agreement that “expenditure” would be shared equally (referred to earlier in paragraphs 8 and 9, in the latter of which it was said to refer to expenditure on foreign trips), and the actual evidence of the claimant which accepted that that pleading was not true (paragraph 33). Then in paragraph 34 he made another express reference to paying for holidays:

Paragraph 35 refers to the evidence in general terms and to the fact that the claimant was not prepared to go so far as to say that she would sue the defendant if he did not pay, and paragraph 36 refers to the claimant’s evidence in general terms and ends with another reference to holiday expenditure:

Paragraphs 37 and 38 acknowledge the acceptance of the defendant that he would pay but finds that this was an acknowledgement of an obligation binding in honour only. He apparently said he would reimburse the claimant for the “balancing items”. Paragraph 39 makes a finding of the absurdity of the idea that either party would have sued the other during the currency of their relationship, a finding which is made in general terms. Then the judge ends with paragraph 40:

The duty of a judge to give proper reasons was accepted by both sides before me, and it is unnecessary to cite authority on the point. I was also shown authority on what should happen when it is said that a judge has not given reasons, but obviously the first thing that it is necessary to consider is whether the judge did in fact fail to give reasons.

It was necessary to describe the last section of the HHJ Gerald’s judgment in some detail because that detail is necessary to consider the force of Mr Liew’s case on the absence of reasons for dismissing the Rent Claim. He submitted that the two claims were distinct in their genesis, as reflected in the manner in which they were pleaded (drawing attention to the pleadings), but the judge’s reasoning, in the section of the judgment analysed above, seemed to be directed to the Expenses Claim alone and did not mention the Rent Claim. They inevitably required separate treatment, but the Rent Claim does not receive any express treatment, apparently. Accordingly it is difficult to see what reasons the judge gave for deciding the Rent Claim.

I have considered the judge’s reasoning closely, and while it is apparent that there was no express reference to the Rent Claim in this part of the judgment (after paragraph 24) I consider that the judge had it in mind and meant his overall reasoning to apply to that arrangement as well as to the expenses arrangement. That meant that his reasoning applied to both even though where it refers to either of them the express reference is to the expenses agreement only. That is for the following reasons.

First, the judge’s overall conclusion was that this relationship was not one in which the parties intended to create a legal relationship in relation to domestic matters. That shines out from the paragraphs – see for example paragraphs 29, 30 and 32. His conclusions as to why the presumption was not rebutted are capable of applying to both the Expenses Claim and the Rent Claim. It is sufficiently apparent to me that that is what he intended just looking at the reasons. I do not consider that the fact that the judge made express reference only to the Expenses Claim means that the reasoning given should be taken to apply only to that claim. That is not a natural reading of the judgment.

Second, the judge is unlikely to have forgotten the Rent Claim when giving his reasons. In those circumstances if reasoning is capable of applying to both it should be taken to apply to both.

Third, the heading to the section shows that he had both claims in mind – “Generally, on second and third elements: was there an intention to create legal relations”. Then when he introduced the reasoning which he provided in paragraphs 25 and following, he preceded that reasoning with words referring to both claims – see the last sentence of paragraph 24 set out above. Accordingly, again, so far as his reasoning is capable of applying to both claims it should be taken to do so.

Fourth, although there is no express reference to the Rent Claim in the course of the reasoning, there is at least one implicit reference. In paragraphs 30 and 31 he refers to the spreadsheets. Those spreadsheets came to contain not only holiday expenses but also the Rent Claim amounts. They were added to the spreadsheets by the defendant – see paragraph 12 of the judgment. So when the judge drew inferences from what happened about the spreadsheets he was impliedly referring to both claims.

For those reasons I consider that one can detect reasoning applicable to both the Expenses Claim and the Rent Claim. At this point Mr Liew’s argument morphs into a submission that his reasons were not good enough because there were factors requiring a distinct treatment of the Rent Claim and the judgment did not provide that. I can see that there were separate details relating to that claim, and the judge did not deal with them, but I do not consider he was necessarily obliged to if he had formed the overall view of the effect of the parties’ relationship, which he apparently did form. I would therefore not accept those arguments.

It follows from the forgoing that, despite the particularly thorough and thoughtful submissions of Mr Liew, I would dismiss this appeal.