Neutral Citation Number [2013] EWHC 1449 (Ch)
Claim Number 2OX50068 
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE OXFORD COUNTY COURT
Appeal Reference CH/1012/0615

Date 6th June 2013
Before:
Jonathan Gaunt QC
(sitting as a Deputy Judge of the Chancery Division)
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BETWEEN:

	CHERYLE VALLEE	Claimant/Respondent	
	and		
	PETER ROBERT ALFRED BIRCHWOOD
(as Administrator of the Estate of Wlodzimierz Bogusz deceased)	
Defendant/Appellant	
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Mr William Moffett (instructed by Rollingsons of 10 Fetter Lane, London EC4A 1BR) appeared for the Appellant
Mr Sinclair Cramsie (instructed by Patrick Smith & Co) appeared for the Respondent

Hearing date: 26th April 2013
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JUDGMENT
Jonathan Gaunt QC:
The Facts
1.	On 6th August 2003 Ms Cheryle Vallee went to visit her elderly father, Mr Wlodzimierz Bogusz, at his home at No.2 Eldon Street, Reading. She found him in poor health. She says in her Witness Statement that he was obviously unwell and that he was coughing badly. She took him out in the car to a cafe at the Oracle Shopping Centre in Reading. When they returned to Eldon Street, they talked about when she would next be able to visit him. This was not easy for her because she and her two daughters lived in France near Versailles. She told him that she planned to visit him again at Christmas, as she had the year before. He replied that he did not expect to live very much longer and might not be alive by then. He said that he wanted her to have the house when he died. He went into another room and returned with the Deeds to the Eldon Street house and a key, all of which he gave to her. He also handed her a plastic bag containing his war medals and a photograph album. She returned to her daughter’s house in Oxford, where she was staying. She did not visit her father again before returning to France.
2.	On about the 11th December Ms Vallee received a telephone call from the Coroner’s Officer who told her that her father had died. The cause of his death was certified by the Coroner after a post-mortem as bronchopneumonia, chronic obstructive pulmonary disease and dilated cardiomyopathy. He did not leave a Will.
3.	The family history is as follows. Mr Bogusz was born in a rural district in the Ukraine in 1920. He apparently fought in the Second World War, although for whom is a little obscure (his daughter said it was for the English) and after the war he came to England. His English was poor and he was not particularly literate, and he got a job as a labourer. On the 11th September 1948 he married Doreen Betty Townsend and Cheryle was born to them on 1st February 1950. When she was only one year old, however, her mother left her father and they were subsequently divorced by a decree which was made absolute on 21st March 1958. Her father had difficulty looking after Cheryle and she was fostered by a Mr and Mrs York, whom she described as good friends of her father. When she was 13 she was formally adopted by Mr and Mrs York. In the previous year Mr Bogusz had bought No.2 Eldon Street in Reading. Mr and Mrs York lived in Reigate in Surrey and so it was difficult for Cheryle to see very much of her birth father but she kept in touch and visited him from time to time. They exchanged cards at Christmas, Easter and on their birthdays.
4.	In 1968 Ms Vallee was married for the first time. She had a daughter but she and her husband separated in 1973. In 1977 she married again to a Frenchman and went to live in France. They had two daughters. They separated in 1996 and she continued to live in France near Versailles looking after her two daughters. Her elder daughter married and went to live in Oxford. Mr Bogusz does not appear to have mentioned to his daughter that he had any surviving relatives in the Ukraine.
5.	After her father’s death Ms Vallee was shocked to be told that, because she had been adopted, she was not his heir. She did, however, persuade the Coroner’s Officer to let her make the funeral arrangements. Ms Vallee was not sure whether she had been formally adopted but enquiries established that she had been. In 2006 she instructed solicitors who wrote to the Treasury Solicitor to claim the property on the basis that it had been given to her by a donatio mortis causa. The Treasury Solicitor rejected her claim and advertised for potential claimants. As a result the matter came to the attention of Mr Birchwood, a genealogist who operated a business known as Celtic Research Limited. He is what is sometimes known as an “heir hunter”. He discovered that Mr Bogusz had a surviving brother, namely Mr Mykola Bogusz, and was subsequently notified by another genealogical research company that there were four other surviving relatives, namely three nephews and a niece, who were the children of another brother (now deceased). Mr Birchwood obtained a power of attorney from Mr Mykola Bogusz and applied for and was granted Letters of Administration on the 8th October 2009 “for the use and benefit of Mr Mykola Bogusz”. I was told that Mr Birchwood was operating under a retainer from Mr Bogusz.
6.	The Treasury Solicitor admitted Mr Mykola Bogusz’s claim to be the deceased’s brother and disclaimed further interest in the estate. Ms Vallee’s solicitors wrote to Mr Birchwood’s solicitors setting out the grounds for her claim, inviting Mr Birchwood to accept it and stating that, if he did not, they would have to make an application to the Court. Mr Birchwood’s solicitors replied that on behalf of the next of kin he rejected Ms Vallee’s claim, as had the Treasury Solicitor. On 7th August 2009 Ms Vallee’s solicitors acknowledged that letter and said that they would be making the necessary application to the Court but did not do so until the present proceedings were issued on 20th February 2012, seeking a declaration that the donatio mortis causa effected the transfer of 2 Eldon Street, Reading to Ms Vallee.
The Hearing
7.	Ms Vallee supported her claim by two Witness Statements, the first dated 6th December 2011 and the second, which gave a fuller account of the gift and its circumstances, and exhibited further documents, dated 21st September 2012 and served about 4 weeks before the hearing. The matter was heard by His Honour Judge Harris sitting in the Oxford County Court on 26th October 2012. Both the Claimant and the Administrator were represented by Counsel who had lodged Skeleton Arguments. At the hearing, of which I was provided with a transcript, Counsel for Mr Birchwood took a studiously impartial role. Ms Vallee was called to verify her Witness Statements and give oral evidence. She produced the original Deeds that she had been given during her visit to her father in August 2003 in the envelope in which they had been given to her. She also produced the photograph album referred to in her Witness Statement and offered to produce the bag of medals which she had in Court. She was tendered for cross-examination but Counsel for the Administrator chose not to cross-examine her.
8.	Counsel then made their respective submissions. Mr Cramsie for Ms Vallee referred the Judge to a passage in Snell’s Equity and to the Judgment of Nourse LJ in Sen v Headley [1991] 1 Ch 425 to establish the necessary ingredients of a donatio mortis causa. He submitted that that Judgment showed that if there was delivery of the documents of title in the form of the title deeds, that would normally constitute a parting with dominion.
9.	When invited to address the Court Mr Chapman explained that it was his role, as he saw it, to “do no more than just flag up arguments that they [the next of kin] may have raised if they were here, without taking an active stance on them, so that all matters are before the Court”. He accepted that the key issue was one of “dominion”. He pointed out that in Sen, the donor was in hospital and was not in a position to return to the property, so that the element of control of the property by him was absent. He submitted diffidently that it was necessary for a valid donatio for the donor to have given effective control of the property to the donee and that, because the deceased remained living in the property for a further 4 months, that meant that control had not passed.
10.	The Judge then gave an extempore judgment. He accepted Ms Vallee’s account of events, he identified the issue and he referred to the necessary ingredients for a gift to amount to a valid donatio mortis causa as set out in the Judgment of Nourse LJ in Sen v Headley. He then said:
“10. There is not really any reason, room or justification for any doubt, in my mind, that the gift was made in contemplation of death. The Claimant’s father was by then an elderly man. He was in poor health and, on the basis of what Mrs Vallee said, not expected to live very much longer, not until Christmas. It seems to me that what he did was certainly in contemplation of death.
11. It must be made on the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not. Again, I do not see any difficulty from the Claimant’s point of view. What was envisaged was that the donor would continue to live in the house until he died, whereupon the house would fall to the full ownership of the Claimant. He was, in my judgment, giving the house on the basis that, when he died, it would be hers. Mr Cramsie and Mr Chapman are not really in dispute over that.
12. Thirdly, there must be a delivery of the subject matter of the gift or the essential indicia of the title thereto which amount to a parting with dominion and not mere physical possession. Sen is sufficient authority for the proposition that the deeds can be indicia, as one would expect. Indeed it is hard to think of any better indicia. And the keys are both practical and symbolic in their nature; symbolic because the donor is handing over the keys, i.e. the ability to come and go, and practical for the same reason. The recipient is given the power and ability to come and go. Mr Chapman very sensibly drew my attention to the possibility of an argument about dominion, but I am perfectly satisfied, without delving into any academic analysis, that what happened here was dominion and not mere physical possession, by reason of the conjunction of the keys and the deeds, and the fact that there was no alteration to the locks or anything of that sort to the house, which meant that the keys would not have worked if the  Claimant wished to use them.
13. In the circumstances of this case, which I think quite clear, I find that there was a donatio mortis causa in respect of the property at 2 Eldon Street, Reading. I make a finding to that effect and will so make, as I am asked, a declaration that the Defendant holds the property on trust for the benefit of the Claimant.”
11.	The Judge also ordered the Defendant to pay the Claimant’s costs of the proceedings. I will have to return to his reasons for making that order later in this Judgment.
Donatio mortis causa — the Doctrine
12.	A donatio mortis causa is a present gift which remains conditional until the donor dies. It can be revoked in the meantime. Until the death, the gift is inchoate. It gives rise to a constructive trust, which gets round the formal requirements for the transfer of land and the creation of trusts of land. If the donor effectively transfers title to the donee, the gift will become unconditional on the donor’s death; if, however, it is revoked in the meantime, the donee holds on trust for the donor. If title has not been effectively transferred, the donor’s personal representatives will hold the property on trust for the donee and can be compelled to transfer it to him. That was the order made in this case.
13.	The conditions which are essential to a valid donatio mortis causa were enumerated by Nourse LJ giving the judgment of the Court of Appeal in Sen v Headley [1991] Ch 425 as follows:
“First, the gift must be made in contemplation, although not necessarily in expectation, of impending death. Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not. Thirdly, there must be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift. ”
14.	The doctrine has its origins in Roman law. It makes its appearance in English law in the 13th Century in Bracton’s “De legibus et consuetudinibus Angliae”. The doctrine appears to have been of little importance until the Statute of Frauds 1677 prevented the making of oral wills. There followed a steady stream of cases throughout the 18th Century. One of the earliest was Hedges v Hedges (1708) Prec Ch 269, to which I was referred. Lord Cooper LC characterised a donatio mortis causa as follows:
“Where a man lies in extremity, or being surprised with sickness, and not having an opportunity of making his will, but lest he should die before he could make it, he gives with his own hands his goods to his friends about him; this if he dies,shall operate as a legacy; but if he recovers, then does the property revert to him. ”
15.	As will be seen, however, it is not among the conditions for a valid donatio laid down in the modern authorities that the donor should be shown not to have had an opportunity to make a will. Lord Cooper’s characterisation may perhaps best be regarded as a justification for the doctrine rather than as laying down conditions for its operation.
16.	In Ward v Turner (1752) 2 Ves Sen 431 Lord Hardwicke laid down that delivery of the subject matter of the gift is essential to constitute a good donatio, at least as long as the subject matter is capable of delivery. If it is not, there must be a delivery of what is equivalent at law. In the case of stock or annuities he said that there could be no donatio without a transfer “or something amounting to that”. So in Miller v Miller (1735) 3 P Wms 356, Jekyll MR had held that an alleged donatio of a coach and horses to the donor’s wife failed as there had been no evidence of delivery.
17.	The doctrine was not confined to gifts of chattels, however, but came to be extended to bonds and other choses in action. In Duffield v Elwes (1827) 1 Bli NS 497 Lord Eldon held that the delivery of mortgage deeds amounted to a valid donatio of a mortgage of a freehold; the donor’s executors became constructive trustees with a duty to perfect the donee’s title; because the trust arose by operation of law it avoided the requirement in the Statute of Frauds that writing was required for the transfer of an interest in land.
18.	Another landmark case was Birch v Treasury Solicitor [1951] Ch 298. The question there was whether the delivery to the donee of certain bank deposit books with the intention that the money in the banks should belong to the donee on the donor’s death effected a valid donatio. Evershed MR said:
“The courts will examine any case of alleged donatio mortis causa and reject it if in truth what is alleged as a donatio is an attempt to make a nuncupative will, or a will in other respects not complying with the forms required by the Wills Act. Such, as we read it, was the case of Reddel v Dobree where the donor stipulated that the box delivered to the claimant should be returned to him, the donor, every 3 months, thereby preserving to the donor an effective dominion over the contents which he could change from time to time. For the same reason it is of the essence of a valid donatio that there should be “traditio ”, that is, delivery in fact of the thing given to the donee. As Lord Hardwicke observed in the course of his judgment in Ward v Turner, mere symbolic delivery will not suffice. It might, therefore, be supposed that there could be a valid donatio only if such subject matters are capable of actual manual delivery. But this is clearly not the law. Thus (as Lord Hardwicke himself noted) where the thing given is of a bulky nature, the handing to the donee of the key of the box or place where the thing is kept will be sufficient and is not to be regarded as merely symbolic. So Lord Hardwicke summed the matter up by stating that it is impossible to make a donatio mortis causa “without a transfer or something amounting to that ”.”
19.	The Master of the Rolls then asked, where actual transfer does not or cannot take place, what will “amount to that”. He said that as a matter of principle delivery of “the indicia of title”, as distinct from mere evidence of title, the document or thing the possession or production of which entitles the possessor to the money or property purported to be given, should satisfy Lord Hardwicke’s condition. Since each of the bank books contained a stipulation that it must be produced in order to withdraw money, the Court of Appeal held that the books were indicia of title, the delivery of which sufficed to establish a valid donatio of the money in the bank accounts.
20.	Until 1990, textbook writers were virtually unanimous that there could not be a donatio mortis causa of land. This view was challenged and held to be wrong by the decision of the Court of Appeal in Sen v Headley [1991] Ch 425.
21.	In Sen v Headley the deceased, a Mr Hewett, was dying in hospital from inoperable cancer of the pancreas; he was visited daily by his long term friend Mrs Sen who was looking after his house, to which she had always had her own set of keys. He asked her to bring to the hospital a bunch of keys kept in a drawer of the sideboard. Three days before his death Mrs Sen asked Mr Hewett what she should do about the house if anything should happen to him. Mr Hewett replied, “The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box. ” After Mr Hewett’s death, Mrs Sen found in her handbag the bunch of keys which she had brought to the hospital at his request; it appeared that he must have slipped them into her handbag without her noticing. One of them was the key to a locked steel box in which the title deeds to the house were kept; another was the key to a cupboard in which Mrs Sen found the box. It was held by the Court of Appeal, reversing the trial Judge, that land could be made the subject of a donatio mortis causa and that on the facts Mr Hewett had effected a valid donatio of the house to Mrs Sen.
22.	The facts of Sen v Headley are, of course, distinguishable from those in the present case in a number of respects: first, the donatio was effected 3 days, as opposed to 4 months, before the donor’s death; secondly, the delivery of the deeds to the donee was both constructive (by the handing over of the keys to the cupboard and box) and somewhat surreptitious, whereas here the Deeds themselves were handed over (with a key to the house) and accompanied by clear words demonstrating the donor’s intention; thirdly, Mrs Sen already had the keys to the house in a caretaker capacity, whereas here a key to the house was handed over; fourthly (which is the crucial difference) Mr Hewett knew that he did not have long to live and there was no practical possibility of his ever returning home, whereas here it was Mr Bogusz’s intention to continue living in the house and he did indeed continue to do so for 4 months prior to his death, during which period his daughter did not return or exercise the ability conferred on her by the handing over of the key to enter the house at will.
The Appeal
23.	Counsel for the Administrator, Mr Moffett, criticised the decision of Judge Harris and submitted that he had fallen into error in three respects:
(1)	In finding that dominion in the property had passed to the Claimant;
(2)	In failing to consider whether the facts of this case brought it within the rationale and proper application of the law in relation to donatio mortis causa; and
(3)	In finding that the alleged gift was made in contemplation of impending death.
Contemplation of impending death
24.	Mr Moffett pointed out that it was insufficient for this purpose for the donor to have contemplated the fact that he might die one day but that the gift must be made in contemplation of death “within the near future”, to adopt the expression used in Re Craven’s Estate (No. 1) [1937] Ch 423, where the deceased in fact died 5 days later. He said that in no decided case was the gap between the gift and the death as much as 4 months, indeed it has usually been a few days, and that there had been no evidence to support Mr Bogusz’s belief that he might not live until Christmas (such, I suppose, as a medical diagnosis) other than his daughter’s statement that he was quite unwell and was coughing.
25.	It seems to me, however, that the Judge was quite right to hold that the gift was made in contemplation of his impending death. It is clear that Mr Bogusz made the gift because he feared that he was unlikely to live until his daughter’s next visit at Christmas. Counsel submitted that there was no evidence that he was suffering from an illness likely to prove terminal and that an actual interval of 4 months between gift and death is too long to count as “impending”. That seems to me to miss the point. The question is not whether the donor had good grounds to anticipate his imminent demise or whether his demise proved to be as speedy as he may have feared but whether the motive for the gift was that he subjectively contemplated the possibility of death in the near future. It appears from what Mr Bogusz is reported to have said that he did contemplate the possibility that he would die before Christmas when his daughter was next to visit him. In that context that was the near future. The fact that the case law requires only that the gift be made in the contemplation and not necessarily the expectation of death supports this view.
26.	It is submitted, however, that the contemplation of death within 5 months is not to be regarded as “impending” death, when one has regard to what it is suggested is the policy behind the doctrine of donatio mortis causa. That is said to be to give effect to the intentions of a donor who does not have the time or opportunity to make a proper Will. Counsel fairly accepted that the modern case law does not make such lack of opportunity something the donee must prove. To adopt it as the temporal measure of “impending” would be, in my judgment, to introduce a further condition by the back door. Most people would, I think, consider that a person who anticipated the possibility of his death within 5 months and accordingly wished to make provision for the transmission of his property, was contemplating his “impending death”.
27.	I do not consider that Equity intervenes in such cases only out of sympathy for those caught out in extremis but rather to give effect to the intentions of donors sufficiently evidenced by their acts such that the conscience of the donor’s personal representative is affected.
Delivery of dominion
28.	The third requirement for a valid donatio is that the donor must deliver the subject matter of the gift to the donee so that the donee enjoys “dominion” over it. This requirement of delivery is the feature which distinguishes the English law doctrine from the various Roman law doctrines. Mere intention to make a gift is insufficient, however clearly expressed. There must be some overt act of physical transfer. It was said by Sargant J in Re Wasserberg [1915] 1 Ch 195:
“The requirement that there should be some act towards gift or transfer avoids equally in both classes of property [chattels and choses] the dangers attaching to merely nuncupative legacies which were guarded against by the Statute of Frauds, the predecessor in this respect of the Wills Act 1837”.
29.	The meaning and requirement of “dominion” is easy enough to understand in the context of chattels. It is used in contradistinction to “possession”. If a chattel is delivered to a bailee, the bailee has possession but not dominion, because the bailee is holding the chattel on the owner’s behalf. Dominion in this context, however, obviously does not mean absolute ownership, because the gift is not to become absolute until the donor’s death; so “dominion” only connotes conditional ownership.
30.	The requirement of “dominion” was first identified by Lord Kenyon CJ in Hawkins v Blewitt (1798) 2 Esp 662, where the evidence showed that a box containing money and clothes had been delivered merely for safe keeping rather than as a gift, because the day afterwards the donor asked for the return of his trousers (which were in the box). An antecedent reservation of a right to have the subject matter of the gift returned periodically while the donor is alive will also demonstrate that dominion has not been given, as in Reddell v Dobree (1839) 10 Sim 244. Delivery of dominion may be constructive, as where a key which enables the donee to “get at” the subject matter as given, but delivery of something symbolic of, but not constituting, the subject matter of the gift, will not do. It is not, however, necessary that the donee should be given total dominion or control over the subject matter; partial dominion will do as long as the donor suffers a corresponding deprivation of the power to deal with the subject matter of the gift: Re Wasserberg (1915) 1 Ch 195.
31.	So much for chattels, but what is the position regarding intangible items of property which cannot be physically delivered? In such a case, it has been held that parting with dominion over the essential indicia of title will usually be enough. Land, however, might be thought to fall somewhere between items capable of being physically handed over and items which are either intangible or too bulky to hand over. An interest in land is, of course, conceptual rather than physical but de facto possession and control of the physical land is capable of being given to a donee. In the case of land, is the delivery to the donee of exclusive physical possession or control over the land a crucial element for a valid donatio?
32.	There is only one reported case in England where it has been held that there was a valid donatio of land, namely Sen v Headley. There the Court of Appeal held:
“In all the circumstances of the case, we do not believe that the law requires us to hold that Mr Hewett did not part with dominion over the house. We hold that he did. ”
33.	The Court observed that Mr Hewett had retained possession of the house by keeping his own set of keys but that the benefits which thereby accrued to him were wholly theoretical. He had uttered the words of gift two days after his admission to hospital when he knew that he did not have long to live and when there could have been no practical possibility of his ever returning home. He had parted with dominion over the title deeds and Mrs Sen had her own set of keys to the house and was in effective control of it.
34.	It is clear that those facts were regarded as sufficient to constitute a parting with dominion over the house but I do not read the Judgment as requiring that something similar is necessary. At first instance Mummery J had expressed great difficulty in seeing how the delivery of the title deeds of land could ever amount to a parting with dominion over the land because the donor would have been fully empowered as absolute owner, without taking any action to recover the deeds from Mrs Sen, to make a declaration of trust in respect of the house in favour of another person or to enter into a binding contract with another person for the sale of the house. The beneficiary under the trust or the purchaser under such a contract would be entitled to an equitable interest which would take priority over any claim that the donee would have on the donor’s death.
35.	The Court of Appeal, however, held that this was wrong, and that the power of the donor to take either of those steps did not amount to a retention of dominion over the land any more than it would in the case of a chose in action. Nourse LJ continued:
“We do not suggest that there might never be a state of facts where there was a parting with dominion over the essential indicia of title to a chose in action but nevertheless a retention of dominion over the chose itself. And it is just possible to conceive of someone, who, in contemplation of impending death, had parted with dominion over the title deeds of his house to an alleged donee, nevertheless granting a tenancy of it to a third party; for which purpose proof of the title to the freehold by production of the deeds is not usually necessary. On facts such as those there might be a case for saying that the alleged donor had not parted with dominion over the house. But nothing comparable happened here."
36.	Mr Cramsie, appearing for Ms Vallee, submitted to me that this passage shows that the Court of Appeal were treating the case of land in the same way as that of a chose in action and were saying that the delivery of title deeds (at least in the case of unregistered land) would usually be enough to constitute delivery of dominion over the land, unless perhaps the evidence established or implied that the donor had reserved to himself the power to deal with the land in a manner incompatible with the gift.
37.	In my judgment that is not only a correct reading of the Judgment but would appear to be right in principle. A gift by way of donatio does not become effective until the death of the donor, so the property remains both in law and in equity the property of the donor. There seems to be no reason why acts of continued enjoyment of his own property should be regarded as incompatible with his intention to make a gift effective on his death. Suppose, by way of example, that the subject matter of the gift was land already subject to a tenancy. Would the donor not be entitled to enjoy the rent while he lived? It seems to me that he would. He has not given it away. That would seem to be no different in principle from the donor continuing to enjoy his own house by living in it. The delivery of the deeds would have put it out of his power to transfer it and the handing over of the key as well would give the donee access to the house and diminish to some extent the donor’s control.
38.	I was helpfully referred by Mr Moffett to the explanation of the rationale for imposing as a condition of a valid donatio that the donor must part with dominion over the subject matter suggested by Farwell J in Re Craven’s Estate (supra at p.427):
“The answer seems to me to be that the subject matter of the donatio must be some definite property and, to ensure that, the donor must put it out of his power between the date of the donatio and the date of his death to alter the subject matter of the gift and substitute other property or chattels for it.”
39.	As is clear from the locked box examples he then gives, Farwell J was deriving that rationale from the chattels cases, albeit that Re Craven was a case where shares and money in a Monaco bank had actually been transferred before the death of the donor at her request and so constituted a valid donatio.
40.	It is not easy to be sure how to apply that rationale to a donatio of land. On the one hand, once the deeds have been handed over by way of gift and not merely for safe-keeping, the donor has put it out of his power (without revoking the gift) to transfer the legal title or alter the interest that is the subject matter of the gift; the fact that he could create equitable interests taking priority to the gift is, according to the Court of Appeal in Sen, not fatal. On the other, it is argued that the retention of physical possession or control over the land, is analogous to the reservation of the ability to retrieve elements of the property pending death.
41.	It was also suggested to me that Mr Bogusz could have effected physical alterations to the house and, by retaining de facto possession and control, had not put it out of his power to do so. That is true in theory but in reality was never going to happen in the case of this elderly gentleman in failing health living in reduced circumstances in a dilapidated house in Reading - and Sen is authority that for this purpose the Court should look at the practical, and not the theoretical, possibilities.
42.	There is no doubt that the concept of “dominion” in this context is a slippery one. Its fundamental rationale appears to be that something must be done by way of delivery of the property or indicia of title sufficient to indicate that what is intended is a conditional gift and not something that falls short of that. There does not have to be a delivery or transfer which would suffice at law to effect a gift inter vivos but, in the words of Lord Hardwicke, “something amounting to that” and, in the words of Sargant J, “some act towards gift or transfer”.
43.	In the present case, in my judgment, the delivery by Mr Bogusz of the title deeds and a key to the house to his daughter in contemplation of his impending death, accompanied by what he said, was a sufficient delivery of dominion over the house to constitute a valid donatio mortis causa. His Honour Judge Harris did not have the benefit of the detailed argument and citation of authority which I have had or the opportunity to research and consider the case law but nevertheless came to the right conclusion for the right reasons. I therefore dismiss this appeal.
Costs
44.	There is a separate and independent appeal against the Judge’s Order that the Defendant pay the Claimant’s costs. The Judge’s reasons for making that order appear from the transcript of the hearing, six pages of which are occupied by the discussion concerning costs. Mr Cramsie applied for costs on the basis that his client had succeeded and had had to bring the action to vindicate her rights. In the course of a discussion Counsel for the Administrator accepted that there had been no evidence to contradict Ms Vallee’s account and that the matter was really a question of legal analysis. He also accepted that Mr Birchwood’s interest in getting involved had been a financial one.
45.	Counsel pointed out that the Administrator owed a duty to the beneficiaries under the intestacy but the Judge observed “these are people he has disinterred himself” and that they would otherwise not have known anything about it. The Judge then made various observations to the effect that it had been open to the Administrator to take and act on legal advice rather than resist the claim and he concluded by saying:
“The Claimant had to do what she did in order to get the house, to which she proves to be entitled. The person stopping her or saying she could not have it or, to put it a different way, not being prepared to transfer the house to her, was the Administrator. He was not an administrator to whom one should have, as it were, the sympathy of having the office thrust upon one, as executors sometimes do, and you feel very sorry for them. This is a man who has gone out as a venture to become an administrator. In those circumstances I think this venture has failed. I think I am going to order him to pay the Claimant’s costs to be taxed if not agreed. ”
46.	Mr Moffett mounted a sustained attack on the costs order. He helpfully summarised his grounds of appeal as follows:
(1)	Lack of adequate reasons;
(2)	Decision given without full opportunity for submissions on behalf of the Defendant;
(3)	Taking account of immaterial matters: the primary reason given by the Judge for his decision was a bad one that did not justify the decision that the Defendant should bear the costs of the Claimant; and the Judge had enquired into privileged matters, namely the advice received by the Defendant;
(4)	Failure to address submissions made on behalf of the Defendant in Counsel’s skeleton argument;
(5)	Failure to consider the provisions of CPR rule 44.3 and apply them to the material facts in the instant case, namely the neutrality of the Defendant, the reasonableness of requiring the Claimant to prove her case and not consenting to it in the circumstances, the poor pre-trial conduct of the Claimant, the content of without prejudice communications and the obvious shortcomings of the Claimant’s alternative claim in proprietary estoppel.
47.	I remind myself that an appeal court should not interfere with the Judge’s discretion on the matter of costs unless he has taken into account irrelevant matters, failed to take account of relevant matters or has made a decision so far outside the generous ambit of the proper exercise of his discretion that it is obviously wrong.
48.	The reasons given by the Judge for his Order were essentially that the Claimant had succeeded, that she had had to bring the claim to vindicate her rights and that the Defendant had undertaken the role of Administrator and had opposed the application in the pursuit of financial gain. I do not understand why those reasons are said not to have been adequate in themselves to explain the Judge’s reasoning or to justify the Order made. Moreover, the Judge’s reasons addressed the arguments put to him at the hearing.
49.	The real criticism appears to be that he failed to address arguments put to him in Mr Chapman’s Skeleton Argument. In that Mr Chapman had submitted that Mr Birchwood’s costs should, even if Ms Vallee’s claim succeeded, by paid by Ms Vallee secured by a charge on the property because:
(1)	Mr Birchwood had taken a neutral stance throughout;
(2)	An order that Mr Birchwood’s costs should be paid out of the estate would be pyrrhic because an asset which is a donation does not form part of the estate and the estate contained very little other than the house;
(3)	That Mr Birchwood was under a duty to safeguard the assets of the estate and could not simply have agreed to Ms Vallee’s claim without the scrutiny of the Court,
(4)	That Ms Vallee had failed to satisfy the Treasury Solicitor on the same facts and had failed to provide disclosure until the day before trial; and
(5)	That Mr Birchwood would have been obliged to bring his own proceedings if Ms Vallee had not, because Ms Vallee had maintained a caution against first registration.
50.	I fear that I do not see much force in these points. Although criticisms are made in the Appellant’s Skeleton Argument on Appeal of the detail of Ms Vallee’s evidence and conduct as tending to cast doubt on the validity of her account, these criticisms were not made at the hearing and Ms Vallee was not cross-examined. Her account of the facts (the full account of which had been available to the Defendant four weeks before the hearing) was accepted and it must follow that it had been unnecessary to take the matter to a hearing in order to establish the facts. The Judge was right to say that in those circumstances it was purely a matter for legal analysis.
51.	That having been so, the Judge was also right to say that that was a point upon which Mr Birchwood could have taken legal advice and, if given advice to the same effect as the judgment, withdrawn his opposition to Ms Vallee’s claim. If the advice was equivocal (as it might well have been) Mr Birchwood would have had to take a view as to whether to press on and should have appreciated, had he done so, that he was at least at risk of being ordered to pay the costs on the usual basis that costs follow the event.
52.	In support of the submission that the Judge had not given Counsel a proper opportunity to develop his submissions on costs, Mr Moffett submitted to me that Counsel had been trying to take the Judge to correspondence which showed Mr Birchwood attempting to settle the matter. I was referred to the correspondence in question, which was plainly without prejudice, was not expressed to be “without prejudice save as to costs” and was therefore inadmissible, and did in any event not contain a sufficiently advantageous offer. I do not see how the Judge could properly have been referred to that correspondence and I do not think it could have made any difference if he had been.
53.	Next it was submitted that the Judge had taken account of immaterial matters. This point was not pressed at the hearing before me and I consider that the matters which the Judge mentioned were certainly matters which he was entitled to take into account. Part of this submission was based on the suggestion that the Judge enquired into privileged matters, namely the advice received by Mr Birchwood. He did not. He merely made the point that it had been open to Mr Birchwood to seek legal advice with a view to deciding whether to resist the claim.
54.	The final ground of appeal was that the Judge failed to consider the provisions of CPR rule 44.3. Apart from matters which I have already mentioned, this ultimately came down to a submission that the Court is required to have regard to the conduct of the parties including the matters set out in CPR 44.3(5). This in turn came down to the submission that it had been perfectly reasonable for Mr Birchwood to require Ms Vallee to prove her case in view of her delay in raising the plea of donatio, the Treasury Solicitor’s rejection of her claim, the paucity of evidential support for her claim, which it was said was only really made good by her second Witness Statement and documents disclosed for the first time on the day of the trial, and the legal uncertainties surrounding a plea of donatio in relation to land. Finally it was said that the claim in proprietary estoppel was bound to fail (albeit that the Judge had not dealt with it) and that that fact should be reflected in any order for costs.
55.	I have some sympathy with the plea that, having got himself appointed Administrator, Mr Birchwood was in a difficult position, being between the devil of Ms Vallee’s claim to be entitled to the only worthwhile asset of the estate and the deep blue sea of his duty to the beneficiary. The Judge, however, took the view that this was a relatively clear case and that Mr Birchwood had put himself in that invidious position in the hope of financial gain and should incur the consequences of having done so. In my judgment, that was a view to which the Judge was perfectly entitled to come, notwithstanding the points made about the Claimant’s conduct of her claim, which had not been, in any event, the subject of submissions made to him. As to the plea of proprietary estoppel, that did not add to the length of the hearing and cannot have made more than a negligible difference to the costs incurred on either side.
56.	In these circumstances I also dismiss the appeal against the Judge’s Order as to costs.