The Supreme Court point

The distinction between inference and imputation of intention merits a brief point, as Lord Neuberger said that ‘an intention may be inferred… it may not be imputed. ’[30] Inference is ‘objectively deduced to be the subjective actual intention’, whilst imputation is ‘attributed to the parties even though no such intention can be deduced. ’[31] The Supreme Court stated that unlike a constructive trust, a resulting trust is an imputation of intention[32], thus under Neuberger’s own ‘dictum,’ a resulting trust should not be used as a presumptive starting point, nor should it be at odds with a common intention constructive trust.

However, the distinction between the two and the difference in application has been considered arbitrary by some[33] and so is unlikely to substantiate its own merit. Indeed, Knott argues that Dowden reintroduced the ‘notion of imputed intention, which was strongly rejected in Gissing. ’ [34] Clearly, the notion of beneficial interest mirroring legal ownership is axiomatic, but whether or not the principle in Dowden is essentially at odds with a constructive trust or resulting trust is open to debate, despite Baroness Hale’s assertion that a resulting trust should not form the presumption.

In her Ladyship’s judgment at [86], it would appear that greater weight was given to their financial contributions and arrangements than relationship-based ones, both in rebutting the presumption and in the quantification of interest. Thus, although a resulting trust should not be the formation of the presumption, it seems that the essence of a resulting trust (i. e. direct financial contributions) may indeed be the deciding factor, thereby aligning itself with the proposition that ‘it is at odds with… a resulting trust’.

On the other hand, although Dowden was primarily decided upon factors relating to finances, both at the time of acquisition and post-acquisition, this does not mean that the presumption ‘is at odds with… a resulting trust’. Instead, it could mean that in this case, it just so happened that no other factors in the rebuttal checklist at [59] were relevant. Therefore, whilst the decision may appear to manifest resulting trust characteristics, it was in fact coincidental. Indeed, even prior to the Dowden presumption, constructive trusts were applied over resulting trusts.

In Drake v Whipp[35], the female partner made a direct contribution of 19. 4% to the actual purchase price, but due to her subsequent labour and household contribution, she was awarded a share of 33%. Furthermore, the approach in Rosset that only express agreements or contribution to purchase price could constitute a beneficial interest was the primary point of law overruled in Dowden, thus the foundation of the presumption is not based on a resulting trust; it is clearly not at odds with the literal characterisation of resulting trusts, although the result achieved under constructive trust may well be the same.

Indeed, after analysing Dowden and subsequent cases, it becomes clear that the statement made by Lord Walker and Lady Hale in Jones v Kernott is only partially correct. Dowden does indeed elucidate that in joint ownership cases, a common intention constructive trust presumption is the default option. That it is at odds with a resulting trust however, is questionable. Whilst in Laskar[36] it would certainly appear that Lord Neuberger’s dissenting judgment and preferential hierarchy of resulting trusts has some merit of applicability, this can only be seen to have merit in cases outside the scope of domestic ownership.

This divergence from the normative presumption post-Dowden, does however has complications; where the intention shifts from domestic to commercial, should the presumption be founded upon constructive or resulting trusts? To stipulate that all presumptive trusts are at odds with a resulting trust however is paradigmatically incorrect. Having a resulting trust as the presumptive starting point would be to ignore not only non-financial contributions, but most importantly, the essence of a joint title itself. The presumption that beneficial interest follows the legal ownership is imperative in order for a joint title to have any substance.

For a trust to be at odds with a resulting trust, whereby one party is penalised for not being able to contribute as much financially as the other, despite the common intention that this is to be set-aside, is to manifest injustice. Furthermore, the constant reiteration that it is the parties’ ‘whole conduct’ which should be assessed surely connotes constructive trust. Taking into account the whole conduct means it cannot be at odds with a resulting trust, as the characteristics of such determines that one can only arise upon acquisitioned financial contributions.

This would not be taking into account the whole conduct. As a result, it must be at odds with a constructive trust. Resulting trust characteristics may well form an initial foundation for beneficial interest and indeed help with quantification (particularly with regards to sole ownership cases) but cannot be singularly conclusive, nor a presumptive starting point, as the whole conduct must be taken into account (i. e. subsequent contributions, including non-financial) thereby forming the characteristics of a constructive trust.