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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Patrick v McKinley [2015] EWCA Civ 1582 (26 November 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/1582.html Cite as: [2015] EWCA Civ 1582

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26 November 2015

1. LORD JUSTICE KITCHIN: This is an application by the claimant, Mr Jason Patrick, for permission to appeal against the judgment of His Honour Judge Gerald dated 1 July 2014 and his consequential order dismissing Mr Patrick's claim to a beneficial interest in or in the proceeds of sale of three properties owned at various times by the defendant, Ms McKinley. The application for permission was considered on the papers by Sir Timothy Lloyd who referred it to an oral hearing which has come on before me today. Mr Patrick has been represented at this hearing by Mr Gillon Cameron.
2. The background is complex but in very broad terms may be summarised as follows. Mr Patrick met Ms McKinley in 2003. At that time he was going through an acrimonious divorce from his then wife by whom he has two daughters, Leah and Megan. He had virtually no assets to his name. Ms McKinley was also divorcing her then husband by whom she had two children, Jade and Sean, the latter of whom died in an accident shortly before the trial. In contrast to Mr Patrick, Ms McKinley was a wealthy woman who, following the final disposal of her matrimonial proceedings, owned directly or indirectly two of the three properties in issue, that is to say Faylands in Henley and Cap d'Ail in France. She also owned various other properties around the world, including a holiday cottage in Ireland called Tir Na Nog and a flat in Cavaye Place in London. In 2007 she bought the third property in issue in these proceedings, a house at 120 Carshalton Road in Surrey. In July 2009 she bought 5 Elvaston Mews in London and one year later Queens Gate Lodge which was close by in Elvaston Place.
3. Mr Patrick maintained that in 2003 he was employed by Ms McKinley as a handyman and housed in a flat on the Faylands estate, but soon afterwards he ceased to be an employee and he and Ms McKinley began to live together in a committed relationship as man and wife. He contended that they remained together at Faylands as their family home until November 2008 when it was sold and they then moved to Cavaye Place while they found a new family home to purchase. At this point they were joined by Leah and Megan who began to attend a private day school in London with Ms McKinley paying for Leah's school fees. However, they found Cavaye Place too small and so in October 2009 they all moved to 34 Hasker Street. This was always planned to be a temporary arrangement because by this time Ms McKinley had bought 5 Elvaston Mews and this was being refurbished as their new family home.
4. Central to Mr Patrick's claim was an allegation that he and Ms McKinley agreed almost from the outset to embark upon a property development joint venture or partnership in which he would gain a beneficial interest in two of the properties which Ms McKinley at that time owned, namely Faylands and Cap d'Ail, and then in due course 120 Carshalton Road. He maintained that he worked extremely hard as project manager and did much of the manual work himself and that he would not have done so had he not believed he had some sort of interest in them.
5. Mr Patrick also mainained that between 2003 and 2005 he was involved in contested proceedings for the custody of Leah and Megan. Eventually joint custody was awarded to Mr Patrick and his mother, Mrs Powderill, and the girls went to live in her home in Driffield in Yorkshire rather than at Faylands because that was still being worked on. Once Faylands was sold the girls came to London and joined Mr Patrick and Ms McKinley at Cavaye Place.
6. The relationship broke down in 2009 when Ms McKinley refused to place 5 Elvaston Mews in the parties' joint names. Mr Patrick thereupon moved back to Cavaye Place where he lived until August 2013. Nevertheless, he continued working on the plans for 5 Elvaston Mews and on ideas for Queens Gate Lodge, which was purchased in 2010, Ms McKinley having led him to believe that it would be their new family home.
7. Ms McKinley disputed many of these allegations. Her case was as follows. Mr Patrick was employed to look after Faylands when she was out of the country, which was often the case because she was resident in Monaco and travelled a good deal round the world. She had a dalliance with Mr Patrick in the summer of 2003 and later that year they began a boyfriend/girlfriend relationship. Mr Patrick moved into the main house at Faylands and remained there until 2005 when he moved up to Driffield to be with his daughters. Nevertheless, she continued to see Mr Patrick frequently and they often travelled together on business trips and holidays abroad. However, at no stage did she cohabit with Mr Patrick as man and wife at Faylands or anywhere else. She remained resident in Monaco and the last thing she wanted was a new committed relationship or to bring up somebody else's children.
8. Ms McKinley's case continued that their intimate relationship came to an end in 2008 at about the time Faylands was sold, but that she remained friends with Mr Patrick and was prepared to continue to help him. At about the same time, Mr Patrick had a row with his mother and moved to London to start a new life with his daughters, at which point Ms McKinley allowed him to move into Cavaye Place as a tenant. She also tried to find odd bits of work for him and agreed to pay Leah's school fees.
9. Ms McKinley disputed that the premises at 5 Elvaston Mews and Queens Gate Lodge were acquired as family homes for herself and Mr Patrick and his daughters and maintained that she never gave any assurances or promises to him and never embarked upon any property development joint venture or partnership with him. Further, she continued, Mr Patrick had grossly exaggerated the work he had done at Faylands, Cap d'Ail and 120 Carshalton Road. He had been remunerated for that work and was in essence a fantasist who had fabricated his claim to extract money from her.
10. The trial came on before Judge Gerald in April 2014 and lasted for some 12 days. In a long judgment given on 11 June 2014 he rejected Mr Patrick's claims, finding that Mr Patrick was an unreliable and unconvincing witness, was ready to be dishonest and manipulative when faced with evidence contradicting his case, had made up evidence as he went along and had made unfounded accusations against Ms McKinley. By contrast, he found Ms McKinley's evidence to be broadly consistent with the evidence of some witnesses called on her behalf and also with the available contemporaneous documents. In his judgment, Mr Patrick regarded himself as being employed by or entitled to invoice for work done for Ms McKinley or her company and as having no other financial or business relationship with her or, for that matter, any claim to any of the three properties in issue.
11. Given the nature and seriousness of the various allegations made against Ms McKinley, the judge found the evidence of two witnesses called on behalf of Ms McKinley particularly impressive. The first, Miss Casey, was Ms McKinley's bookkeeper from 2005 to 2008 and the other, Mrs Robinson, was Ms McKinley's personal assistant from July 2007 to June 2009. Their evidence was, so the judge found, reliable and accurate and broadly consistent with that of Ms McKinley. So too was that of Mr Emmett, an architect employed by Ms McKinley.
12. There was no dispute between the parties as to the law and so the judge proceeded to deal in a structured way with the various factual issues that he was required to resolve. The judge began by identifying the key promises which Mr Patrick alleged that Ms McKinley had made and upon which he relied. These were alleged to have been made in the period between May and September 2003. In summary, each was to the effect that Mr Patrick and Ms McKinley would develop properties together in order to secure a joint future for themselves and their children and that each was made in the context of a committed relationship for they were in love with each other and planned to live together in a relationship in which they would be emotionally and financially supportive of each other.
13. Mr Patrick also said that in early 2004 a further conversation took place between them in the course of which Ms McKinley intimated that once she was the outright owner of Cap d'Ail or more particularly the company which owned Cap d'Ail, then they would have a vehicle which would allow them to develop Faylands and other properties.
14. Mr Patrick maintained that in reliance upon these representations, he committed himself to the project and the development work and in the result was entitled to an interest in the properties or their proceeds. He expressed his entitlement in various different ways. One was to 50 per cent of the increase in value of the three properties during the currency of their relationship.
15. The judge was clearly unpersuaded that any such promises or assurances were ever given. He found Mr Patrick to be an unreliable witness and that he was incapable of giving straightforward and simple answers to straightforward and simple questions, prone to obfuscate and evade and lie and that he had a tendency to fantasise. From the outset, the judge seems to have formed the view that Mr Patrick would spin a line and exaggerate and distort the truth.
16. The judge also made findings about various other material issues early in his judgment. He held that Mr Patrick was initially employed as a housekeeper and manager under a contract of employment dated 9 March 2003 and his responsibilities were commensurate with that title. He was, so the judge found, a general assistant and maintenance man. The judge dismissed evidence given by Mr Patrick in cross-examination that he had never signed the contract and the judge concluded that, with a few exceptions, it accurately encapsulated the work which he actually did. A further unsatisfactory aspect of Mr Patrick's evidence was, to the judge's mind, the evidence he gave as to his net worth. The judge explained that Mr Patrick was simply not prepared to recognise that he was impecunious when he met Ms McKinley and that he was in no position to make a financial contribution to the new business venture. Moreover, Mr Patrick maintained, contrary to the fact, that he took the lead in relation to the new venture and that he and Ms McKinley embarked together upon a steep learning curve. The judge was clear that contrary to the evidence which Mr Patrick gave, he had no skills or experience and no inclination or aptitude to acquire any skills or expertise other than those that he needed to carry out the work which he was recquired to do under his contract of employment. There was also a substantial dispute as to the state of repair of Faylands when the parties met. In relation to this issue, again the judge rejected Mr Patrick's evidence and preferred that of Ms McKinley. On the subject of marriage, the judge found that Mr Patrick also gave false evidence. He maintained that Ms McKinley raised the issue of marriage almost from the outset and that within a few weeks they were in a committed relationship and lived together as man and wife. He also said that in April 2004 on a trip to Ireland he proposed to Ms McKinley, she accepted and that their love was symbolised by an exchange of Claddagh rings. But the judge found all of this evidence to be thoroughly unsatisfactory for a number of reasons, including the fact that contrary to a direction he gave, Mr Patrick made contact with his mother and that was done, so the judge found, to warn her of a likely line of cross-examination and in the hope that she would be prepared to back him up.
17. Drawing the threads together, the judge preferred the evidence of Ms McKinley and was simply not persuaded that she had ever made any of the promises and assurances upon which Mr Patrick claimed to have relied. Moreover, there was nothing, so the judge thought, in any of the evidence relating to subsequent events which cast any doubt upon his finding. In short, so the judge held, Ms McKinley did not at any time give any promises or assurances that Mr Patrick would have any interest in or any entitlement to any of her assets. Mr Patrick did not believe he would have any such interest or entitlement and there was no form of business relationship or partnership between them save that he was employed by her and was duly paid for the work that he did.
18. These findings were fatal to Mr Patrick's claim, but the judge then proceeded to deal with the evidence which Mr Patrick gave in relation to custody proceedings, bankruptcy proceedings and benefit claims in the period from 2003 to 2008, all of which supported Ms McKinley's case. The judge made very serious findings about Mr Patrick's honesty and integrity in relation to the evidence that he gave in those proceedings. Some idea of the strength of the findings the judge made may be gained from the way he dealt with the evidence that he had given in the bankruptcy proceedings. The judge found that his explanation for that evidence constituted a web of lies which he had spun and that he had falsely blamed Ms McKinley for his woes.
19. That brought the judge to a consideration of the work done in relation to the various premises to which I have referred. Again, in large part, the evidence that Mr Patrick gave was rejected by the judge and that was in large measure because he preferred the evidence of Ms McKinley.
20. It is convenient at this point to mention what happened after the sale of Faylands in 2008. The very close relationship between Ms McKinley and Mr Patrick came to an end in the summer of or late 2008 after an incident in Cap d'Ail when, so the judge found, Ms McKinley was assaulted by Mr Patrick. Ms McKinley reported this assault to Mrs Robinson whose evidence on the subject the judge accepted. The judge considered that there was clear evidence before him of violence and verbal abuse towards Ms McKinley, which again he accepted. Nevertheless, the intimate relationship between the parties did not come to a an end and Mr Patrick, having had a row with his mother, returned to London with the girls. In these circumstances, the judge continued, Ms McKinley allowed him to use Cavaye Place and Mr Patrick enrolled the girls at Queen's Gate School. Mr Patrick applied for housing benefit and working tax credit. In his application he stated that his previous address was his parents' home in Driffield and that he had been employed by Ms McKinley since March 2003 and that she lived in Monaco. The judge rejected a suggestion by Mr Patrick that he was forced by Ms McKinley to make the housing benefit claim, but held that it was the case that Ms McKinley, who had grown fond of Leah, did agree to pay her school fees.
21. Throughout this period of time and despite the deteriorating state of their relationship, the judge accepted that Mr Patrick and Ms McKinley were from time to time still intimate and certainly in November 2009 she described him in a police statement as being her partner. She also continued to try to help him out and find work for him and employed him for a time through her company, MML. This period was also marked, so the judge held, by occasional incidents of violence and drunkenness.
22. The judge recognised that it was likely that in these respects Ms McKinley downplayed or understated aspects of the intimate relationship that she had with Mr Patrick, but none of this was, in his view, inconsistent with the findings he had made. He was entirely satisfied that Ms McKinley had made it clear that she was not interested in a committed relationship and there was never any question of there being a joint business venture or partnership.
23. In July 2009 Ms McKinley bought 5 Elvaston Mews and then in March 2010, Queens Gate Lodge. 5 Elvaston Mews was plainly bought as a development project for MML, but Queens Gate Lodge was purchased in order to provide a London home. I should mention two text messages sent by Ms McKinley to Mr Patrick upon which he placed great reliance, one saying that, "We finally have a home where we can put our heads down and have a life after 10 years", and the other in which she said, "Completed on the lodge. Will soon have a home and it will be better than Elvaston, I promise." But the judge was not prepared to attach the importance to them that Mr Patrick invited him to. In the judge's view, they reflected her excitement at the next stage of her and her company's development projects and not that Ms McKinley saw a future for them together.
24. There are two final matters to which I must refer. The first concerns the judge's findings as to the payments Mr Patrick received for the work he had done. The judge set out details of these, so far as they were available. In broad summary, the judge said that Mr Patrick was paid wages reflecting his employment and at various times separately invoiced for and was paid for additional work that he did. Later, he was employed by MML. From the judge's view it tended to refute his case that he was in any sort of joint venture or partnership.
25. The last matter concerned the destruction of hard drives and documents. This was dealt with by the judge from [271] to [285]. In broad outline, Mr Patrick contended that Ms McKinley had, shortly after she was ordered to provide disclosure, removed from storage a number of computer towers, a pilot logbook, boxes of photographs, a box of diaries and a laptop computer. The towers were in due course replaced, but with the hard drives destroyed. Ms McKinley denied that she had removed the towers at all. The judge was, as he put it, reluctant to find that she had in fact removed them. But in any event, he found that even if she had not told the truth on this aspect of the case, it would not have caused him to draw any material adverse inferences against her. This is a matter to which I must return for it forms one of the major planks of the application for permission to appeal.
26. The judge then addressed the quantum meruit claim, the answer to which he had in a sense foreshadowed. Here again he summarised his conclusion that Mr Patrick had failed to adduce any credible evidence that he had done any work for which he had not been paid but for which he expected to be paid or was entitled to be paid. In the context of the somewhat complex relationship between the parties, he was paid, so the judge held, for whatever he said he had done and in the manner in which he asked. Ms McKinley also supported him by providing him with housing and she gave him a large number of gifts and treated him to holidays and conferred on him all kinds of other benefits.
27. Mr Patrick now seeks permission to appeal against the judgment and the judge's consequential order and contends that the judge was wrong in making the findings that he did. Mr Cameron submits on his behalf that the judge wrongly formed the view at an early stage of his evidence that he was not telling him the truth and that this led him to conclude that Ms McKinley was an honest witness and was telling him the truth despite clear evidence that she was lying. Upon this application and by his grounds of appeal, Mr Patrick therefore seeks to show that he has a real prospect of establishing on an appeal that the judge fell into error in analysing in the way that he did a series of fundamental issues before him and that consequently his judgment on other matters cannot be relied upon. Specifically, Mr Patrick advances the following three grounds of appeal. First, the judge was fundamentally wrong in his assessment of the credibility of Mr Patrick and Ms McKinley. Secondly, on a number of key issues the judge failed correctly to analyse the evidence before him. Thirdly, the judge conducted a large part of the trial in a way that was not evenhanded.
28. In his skeleton argument and upon this application, Mr Cameron has focused his attention upon the judge's findings in relation to ten issues. Mr Cameron submits that Mr Patrick has a real prospect of successfully persuading this court that the judge fell into error in making the findings that he did in relation to each of them and that in consequence he has a real prospect of prevailing upon an appeal against the judge's overall conclusions. Many of these matters are interrelated or overlap one with another.
29. The first and second points concern the alleged removal by Ms McKinley of the hard drives from the computer towers which were stored at the premises of a business called Revival and the removal of other items. In this connection Mr Cameron submits that the hard drives were of great importance to Mr Patrick's case and that the judge ought to have found that Ms McKinley removed these hard drives and other items from storage with a view to thwarting Mr Patrick's claim and that he ought also to have concluded that Leah gave truthful evidence about Ms McKinley breaking into the flat at Cavaye Place and removing various personal items which belonged to Mr Patrick.
30. Further, Mr Patrick contends that the judge fell into error in suggesting as he did that even if he had concluded that Ms McKinley had removed the hard drives and other items then it would not have caused him to draw any material adverse inferences against her. This, argues Mr Cameron, is a fundamental part of the case, that the evidence could hardly have been stronger that Ms McKinley did indeed carry out these various activities and that she must have done so in order to prevent Mr Patrick from accessing crucial material which would support his claim.
31. In this regard, Mr Cameron points out that in February 2012 Mr Patrick applied for specific disclosure of various items and sought an order that he be permitted to attend at the premises of Revival to inspect the hard disks of the computer towers. Very shortly thereafter, Ms McKinley attended at Revival and removed various items from storage which were detailed in a list. That list identified a pilot logbook, a box of pictures, a box of photograph albums, a box of diaries, two further boxes of pictures and Mr Patrick's Apple laptop. Four computer towers were also specified, but they were then crossed through. In due course, an expert was instructed by both parties, at which point it became apparent that the hard drives had been removed from the computers and as was noted in an e-mail, it seemed that they had been ripped out of the machines in a hurry or at least removed by someone who did not know what he or she was doing.
32. Mr Cameron also submits that the statements made in correspondence by Ms McKinley's solicitors, presumably on instructions, were not true and that the evidence Ms McKinley gave about her activities and by way of explanation for them was again hopelessly inadequate and internally inconsistent. In short, he contends that Ms McKinley was dishonest as to what she had done and why she had done it and the judge wrongly failed so to find. Further, Mr Cameron continues, Leah gave evidence upon which she was not cross-examined that in October 2010 Ms McKinley came to Cavaye Place and removed documents, photographs, a company laptop and project managing notes, all of which would have been highly relevant to the issues the judge had to decide and yet none of which was properly taken into account.
33. The judge did not find Ms McKinley's evidence particularly satisfactory, but was apparently reluctant to find that she had removed the hard drives for three reasons. First, there was no direct evidence that the computers contained the hard drives on the date she attended. Second, had the computers been removed or returned, then he would have expected this to have been separately recorded in Revival's notes; as it was the computers were simply listed and then deleted. Further, the computers could not easily be lifted, comprising as they did four quite big towers. Third, had the hard drives been ripped out in a hurry, then that ought to have been part of the expert's opinion and not simply expressed as it was in a covering e-mail. Overall, the judge reiterated that he had found Ms McKinley to be an honest witness and that her evidence was broadly consistent with the contemporaneous documents and this was a matter which he took into account in relation to this aspect of the case. He also considered that it would have been in Ms McKinley's interest to track down the hard drives as they would likely have contained information in support of her case. As for the other items, these were removed as part of a large quantity of material, most of which belonged to Ms McKinley and had nothing to do with the merits of the case.
34. Mr Cameron has vigorously attacked all of this reasoning and contends that it was plainly very likely that the computers did contain the hard drives in February 2012, that the judge failed to give any weight to the fact that the computers were on the list in the first place and that whether or not the drives had been ripped out in a hurry, the key fact is that they were not there and that it was overwhelmingly likely that Ms McKinley was responsible. Further, the judge ought plainly to have been prepared to draw adverse inferences against Ms McKinley had he reached the conclusion, as he should have done, that her explanation was indeed wholly inadequate. Here, says Mr Cameron, the judge was not even handed.
35. Mr Cameron's submissions raise serious issues and do embody powerful points which I cannot resolve on this application; and, not without considerable hesitation, I have come to the conclusion that it is arguable that the judge did not properly take them into account in carrying out the evaluation he did.
36. The judge went on to find that had Ms McKinley behaved in the manner alleged, it would not have caused him to draw any adverse inferences against her for the following reasons. First, it was more likely than not that the evidence would only have related to the period well after the initial promises and assurance had been made in 2003 and 2004. Second, Mr Patrick had shown himself to be dishonest and it was not possible to accept his repeated assertions that there were thousands of documents which had not been disclosed which would have supported his case. Third, while it would have been wrong to remove and destroy documents in hard drives, that had to be seen in the context of Ms McKinley having been in an abusive relationship. In these circumstances, it would be rational, although wholly wrong, for a person in Ms McKinley's position to seek to expunge documents and evidence which might be misconstrued, twisted or manipulated in support of an adverse case.
37. Once again, Mr Cameron contends that the judge here fell into error and that he ought plainly to have been prepared to draw serious adverse inferences against Ms McKinley had he reached the conclusion, as he should have done, that her explanation was wholly inadequate. He submits that the judge's reasoning is fundamentally flawed and the conclusion to which he came is simply not sustainable. In this regard, Mr Cameron focuses in particular upon the judge's finding that Ms McKinley's explanation has to be seen in the context of the abusive relationship in which she had found herself. For reasons to which I shall come, Mr Cameron submits and I accept it is arguable that that was a finding which was simply not open to the judge and accordingly, once again, I have come to the conclusion that these submissions do merit consideration by the full court.
38. The third point relied upon by Mr Cameron concerns the parties' relationship. Here he contends that the judge mischaracterised the nature of the relationship and instead of finding that Ms McKinley had underestimated the amount of time Mr Patrick spent at Faylands before it was sold as well as her feelings for him, he ought to have found that Ms McKinley had been dishonest. Further, Mr Cameron continues, the judge failed properly to consider the nature and extent of the parties' relationship in the period after the sale of Faylands. He submits that the only reasonable conclusion in light of this evidence is that this relationship contained many of the principal elements of a serious relationship and this continued after the sale of Faylands; that Ms McKinley had frequent conversations both with Mr Patrick and his mother; that Ms McKinley and Mr Patrick visited properties together and had a series of holidays together; and that Ms McKinley and Mr Patrick outwardly manifested to the world that they were partners. Here too it is said that the judge failed to deal with crucial evidence given by Mrs Powderill to the effect that she was assured by Ms McKinley that she would look after the children and provide them with a home.
39. Mr Cameron has supported these submissions by taking me during the course of his submissions this morning to various statements made by Ms McKinley about the relationship between the parties in her written evidence and has contrasted these with a series of statements in cards and e-mails and contemporaneous documents of different kinds which reveal the extent of the activities the parties engaged in together over the period from 2003 to 2010 and the feelings of the warmest kind that Ms McKinley had expressed for Mr Patrick. The judge's approach to this evidence and the conclusions he reached are, says Mr Cameron, unsustainable and again reveal a lack of evenhandedness in his approach to the parties. He argues that the relationship clearly contained and was characterised by those features which reasonable people would consider to be a mark of a serious relationship; that the judge was wrong and had no basis to describe that relationship as being on/off with Ms McKinley having other boyfriends and that, contrary to the evidence given by Ms McKinley, that relationship plainly continued after the sale of Faylands. In the light of this unchallengeable evidence, he continues, it was simply not open to the judge to conclude that the evidence given by Ms McKinley on this issue was honest. Mr Cameron underlines these submissions by reference to the first and second points to which I have already referred. He says that Ms McKinley deprived Mr Patrick of the opportunity properly to develop his case before the court by disabling the computers and thereby denied Mr Patrick access to the critical further documents which would have supported his case.
40. This is another fundamental attack on the approach taken by the judge to the conclusions he reached. Again, it seems to me, closely allied as it is to the first two points which I have summarised, to be a matter which Mr Patrick should be permitted to develop before the full court.
41. Point four is also, so it seems to me, closely related. Here Mr Cameron submits that the judge fell into error in not finding that the parties lived together at Faylands or Cavaye Place or Hasker Street and in not finding that the parties were planning to live together with their families in Queens Gate Lodge. Specifically, Mr Cameron submits the judge failed to give any proper regard to the evidence that Ms McKinley and Mr Patrick considered that they were living together at Faylands, ignored the wealth of evidence that showed the parties lived together at Cavaye Place and Ms McKinley considered that to be her home after they left Faylands and ignored a body of evidence to the effect that they moved to Hasker Street as a family unit. So also, Mr Cameron continues, the judge ignored critical e-mails sent by Ms McKinley to Mr Patrick in February and March 2010 as to her intentions in relation to Queens Gate Lodge. Here Mr Cameron has once more referred me to a number of materials and aspects of the evidence which he says undermine the judge's conclusions in relation to these issues and with which the judge has simply not dealt.
42. I have come to the conclusion, much as I have in relation to the third point, although again not without considerable hestitation, that it is arguable that the judge failed properly to consider this material and that it is arguable that the conclusions to which he came are not consistent with the various documents and other materials upon which Mr Patrick relies.
43. Mr Cameron's fifth point is one that I have foreshadowed. He contends that the judge was not entitled, given the way that the case was put to him and the evidence he heard, to suggest as he did during submissions that Ms McKinley stayed with Mr Patrick because he was violent, and to find as he did at, for example, paragraphs 198 to 199, 219, 242, 246 to 248, 284 and 296 of the judgment that Ms McKinley and Mr Patrick were in an abusive relationship which was characterized by bouts of violence from Mr Patrick. This, says Mr Cameron, was a fundamental part of the judge's reasoning in preferring the evidence of Ms McKinley and rejecting that of Mr Patrick.
44. In this connection, Mr Cameron submits that both before and at the trial various exchanges took place from which Mr Patrick was entitled to conclude that violence would not be an issue in the case and counsel appearing for Mr Patrick therefore did not fully pursue it with any witness. Nevertheless, so Mr Cameron continues, the judge wrongly proceeded to make findings of violence in his judgment and these were of fundamental importance to his approach to the whole of the case. The true position, says Mr Cameron, is that Mr Patrick was throughout under the powerful influence of Ms McKinley, who was a highly manipulative woman. The judge wrongly assessed the relationship between the parties and did so in significant part upon the basis of his findings of violence. These were, says Mr Cameron, simply not open to the judge.
45. This is, it seems to me, an important point and raises an issue which I cannot resolve upon this application. I have come to the conclusion that I must, therefore, give Mr Patrick permission to appeal in relation to this issue.
46. It is then contended by Mr Cameron as his sixth point that the judge was wrong to conclude that the various assertions in statements which Mr Patrick had made in the custody proceedings, in the bankruptcy proceedings and in his housing benefit applications were untruthful. In this connection, it is said that the judge failed to give proper regard to evidence of Ms McKinley's involvement in the documents and the balance of power that existed between the parties and then wrongly attached weight to these findings in considering that it undermined Mr Patrick's other evidence. The judge's findings are, it is said, inconsistent. They were in a relationship and continued with it even to the extent of Ms McKinley sending Mr Patrick a Valentine's card and them travelling on holiday together.
47. I am conscious that the judge was faced with flatly conflicting evidence given by Mr Patrick in these earlier proceedings and applications and that which he gave at trial. I am also conscious that the judge had the opportunity to evaluate Mr Patrick's evidence and his explanations for these discrepancies and changes of position. Nevertheless, it seems to me that having regard to the other points upon which Mr Patrick relies and in relation to which I have given permission to him to appeal, he should have permission in relation to this issue too for it is, to my mind, closely related with them.
48. Mr Cameron next complains as his seventh, eighth and ninth points that the judge wrongly concluded that Mr Patrick was being untruthful in his evidence about the Claddagh rings, that the judge attached undue weight to the fact that Mr Patrick had spoken to his mother during the course of his evidence and wrongly found that Mr Patrick had attempted to interfere with and influence the evidence before the court and wrongly concluded that Mr Patrick had not done any work for which he had not been or did not truly regard himself as having already been properly remunerated for.
49. Had these points stood on their own, I would not have been minded to grant permission in relation to them. However, Mr Cameron submits that the judge's approach to them and his findings in relation to them were coloured by his findings as to the nature of the relationship between the parties and by the findings he had made as to Mr Patrick's integrity. Not without some hesitation, I have therefore decided it is appropriate to give Mr Patrick permission to appeal in relation to these issues too.
50. I am conscious that this court will not interfere with findings of fact made by trial judges unless it is compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this are well-known. Nevertheless, for the reasons I have given and, as I say, not without considerable hesitation, I have come to the conclusion that it is appropriate in the context of this case to grant permission to appeal. It is not my intention in granting this permission that Mr Patrick should be entitled to open up every issue decided by the judge, but rather that he be permitted to argue the particular grounds and points which I have identified in this judgment.