Justice Without Limits: ‘all things to all judges’ in Stack v Dowden
Author - Jenny To
Dixon proposed that ‘Stack is all things to all judges’ (Dixon, 2007, 460) given that the court is entitled to consider the ‘whole course of dealings’ when inferring the parties’ intentions as to beneficial ownership under a common intention constructive trust (‘ the CICT’). In this sense, Stack privileges flexibility over certainty. This approach resembles the judicial discretion concerning the fashioning of equitable relief in proprietary estoppel (‘PE’) in that the court now responds retrospectively to the conduct of the parties.
This article addresses three issues: first, whether Stack has resulted in the convergence of the CICT and PE. Secondly, whether, if so, this is a blessing or a curse. Thirdly, whether there are any preferable alternatives to the Stack approach. I argue that Stack has indeed brought the CICT closer to PE; pursuing flexibility at the expense of certainty. The ‘resulting trust’ approach advocated by Lord Neuberger in Stack is to be preferred.
Pre-Stack: Discrepancies between two doctrines
Before Stack, the discrepancies between the CICT and PE were twofold. First, the CICT is institutional: the court merely discerns and gives effect to the parties’ common intention. As observed by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington LBC, the court’s role is to declare that the trust arose at some time in the past. In principle, it merely gives effect to a prior common intention as to ownership rights. In PE, by contrast, the court grants discretionary remedial relief to undo unconscionability; it looks retrospectively at the words, conduct and circumstances of the parties.
After Lloyds Bank v Rosset
Second, in terms of quantification mechanism, only direct contributions to the purchase price or contributions to the payment of mortgage installments can be used to infer the existence of a common intention constructive trust. Pawlowski (2002) pointed out that the courts discount domestic and spousal contributions. These are not sufficient to evince the parties’ intention to share ownership of the family home. PE is more generous since the court examines the assurance given, the extent of detrimental reliance (both financial and non-financial) and unconscionability overall when dealing with claims. Etherton (2008) points out that the court looks at detriment and countervailing benefits (striking a proportionate balance between expectation and detriment) to undo unconscionability.
Post-Stack: Homogenization of two doctrines
The criteria set out in paragraph 69 of Stack change things. First, the notion of the ‘whole course of dealings’ suggests a holistic approach to the determination of beneficial shares. It requires the court to examine retrospectively the parties’ arrangements relating to the property (such as payments for decoration, repairs, housekeeping). Like PE, the CICT now looks retrospectively at an extensive range of factors regarding the parties’ mutual dealings as they concern the property, at least when deciding on the size of the parties’ respective beneficial entitlements.
Second, after Jones v Kernott, the courts will impute an intention to the parties as to the quantification of their beneficial interests (when there is no express or implied agreement) which the court considers fair regarding their whole course of dealing related to the property (Jones v Kernott, ). Thus, the CICT assimilates the PE concept of unconscionability into the CICT.
These changes are problematic for three reasons. First, the yardstick of fairness is nebulous; there is uncertainty as to what is fair and fair to whom (Gardner, 2013). Second, Gardner (2008) accused Lady Hale of failing to provide guidance as to how to navigate the extensive criteria in paragraph 69 in Stack. Battersby (2008) condemned reliance on subjective factors such as the parties’ characters and personalities in the criteria. Third, the line between inferring and imputing an intention is so fine that it may not always be clear whether judges are inferring or imputing an intention, as Lord Neuberger pointed out in Stack.
Flexibility at the expense of certainty
Stack privileges flexibility at the expense of certainty. This gives rise to uncertainty as to the apportionment of property interests and priorities between competing interests. I, therefore, argue that this is a step in the wrong direction.
Some may welcome Stack as a legitimate extension of the law of CICT to satisfy practical justice. Greer (2015) argued that an arithmetic approach to deriving the parties’ intention in a long-term relationship leads to injustice to female claimants. Therefore, the law should move on responding to changing socio-economic conditions, rather being shoe-horned into the traditional institutional model. I propose two counter-arguments as follows. First, the plaintiff can jointly plead both the CICT and PE and leave it to the court to determine his or her interests in practice. There is no point in unnecessarily fusing the two doctrines. Second, legal certainty is the key to practical justice. It secures predictability in our legal system.
Resulting trust as alternative
Battersby (2008) preferred Lord Neuberger’s ‘resulting trust’ approach as it produces certainty from the outset. This is because the plaintiff’s beneficial interests arise clearly on the acquisition of the property and is proportionate to his financial contribution.
Further, the ‘resulting approach’ avoids unnecessary judicial activism, as submitted by Hopkins (2011). Judges in Stack showed sympathy to a communitarian approach (that gives value to the relationships as a decisive factor) in family home disputes (Harding, 2009) . Such an approach may lead to a 'familialisation' of property law (where property law principles are adapted to take on features of family law), as suggested by Hayward (2012).
Justice without limits?
Stack has led to a convergence of the CICT and PE achieving flexibility at the expense of certainty. The ‘resulting trust’ approach advocated by Lord Neuberger is preferred since it gives much clearer guidance to the parties and the courts as to the process of determining the parties’ beneficial entitlements.
1. Stack v Dowden  UKHL 17
2. Pettitt v Pettitt  AC 777
3. Gissing v Gissing  AC 866
4. Lloyds Bank plc. v Rosset  UKHL 14
5. Westdeutsche Landesbank Girozentrale v Islington LBC  UKHL 12
6. Crabb v Arun District Council  Ch. 179.
7. Jones v Kernott  UKSC 53
8. Oxley v Hiscock  Fam. 211 CA
1. Battersby. G., “Ownership of the family home: Stack v Dowden in the House of Lords” (2008) 20 Child and Family Law Quarterly 255
2. Dixon, M., “The never-ending story - Co-ownership after Stack v Dowden” (2007) Conveyancer and Property Lawyer
3. Etherton, T., “Constructive trusts: a new model for equity and unjust enrichment” (2008) 67 Cambridge Law Journal
4. Gardner. S., “Problems in family property” (2013) 72 Cambridge Law Journal 301
5. Gardner. S., “Family Property Today” (2008) 124 Law Quarterly Review 422
6. Greer. S., “Imputation, fairness and the family home” (2015) The Conveyancer and Property Lawyer,
7. Hopkins. N., “The relevance of context in property law: a case for judicial restraint?” (2011) 31 Legal Studies
8. Harding. M., “Defending Stack v Dowden” (2009) Conveyancer and Property Lawyer
9. Hayward. A., “Family property and the process of "familialisation" of property law” (2012) 24 Child and Family Law Quarterly
10. Mark Pawlowski, ‘Beneficial Entitlement- Do indirect contributions suffice?  32 Fam Law 190-194.
1. Gallagher, S., Equity and the Law of Trusts in Hong Kong, (2015)
2. Megarry R., The Law of Real Property, (8th ed), (Sweet & Maxwell, 2012)
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