England and Wales – High Court

High Court (Chancery Division): Nicholas Warren QC (sitting as a deputy Judge of the High
Court) – sentenza 14 Maggio 1999 [Rowe v. Prance]

Introduction
In this case, the Plaintiff/Claimant (“Mrs Rowe”) seeks a declaration that she is the beneficial owner
of a half share in the proceeds of sale of a yacht named “Edwardian Castle (“the Boat”). The Boat was,
until its sale in the circumstances which I shall describe later in this judgment, registered in the sole
name of the Defendant (“Mr Prance”).
Mrs Rowe claims a half share in the Boat, and now its proceeds of sale, on the footing either (a) that
Mr Prance expressly constituted himself a trustee of the Boat for himself and her or (b) that a
constructive trust arises under the principles – well established in relation to quasi-matrimonial homes –
exemplified and explained in Lloyd’s Bank v Rosset, Grant v Edwards and Eves v Eves.
The evidence was given by Mrs Rowe and Mr Prance, who were both extensively cross-examined
particularly about their relationship over the period from when they met sometime in 1982 until 1996
which is of central importance to an understanding of the issues which arise. No other witnesses gave
evidence.
Having had the advantage of seeing and hearing both Mrs Rowe and Mr Prance in the witness box, I
have no hesitation in accepting her evidence in preference to his on all matters of fact on which they
disagree. I found Mrs Rowe an honest and straightforward witness. Her evidence was measured and
considered. She did not exaggerate what she had to say in order to bolster her case.
In contrast, I found Mr Prance an unreliable witness. To begin with, his witness statement presented
a distorted picture of the relationship between himself and Mrs Rowe and was, in my judgment,
calculated to give a misleading impression of the strength of feeling which existed between them. He
said many things designed to strengthen his case which I do not accept: having given one explanation in
his witness statement, he gave another in the witness box; having been extensively cross-examined on
the first day in relation to certain matters, he produced explanations the next day to bolster his case not
even hinted at the day before. It has to be said the manner in which he conducted his relationship with
Mrs Rowe is, if what he says is true, extraordinary: the word “bizarre” used by Mr Leonard for Mrs
Rowe seems to me apposite. As will appear from the facts appearing below, Mr Prance and Mrs Rowe
had, over a period of many years, a close and loving relationship. In his witness statement he says:
“The Plaintiff’s entire claim is based on invention, an untrue representation of our relationship and a
distortion of the facts surrounding the purchase of the boat and our spent on it together…It [the arrest
of the Boat] was a malicious and unnecessary act.” I totally reject those assertions.
The facts
Although much of the history of the relationship, and the events surrounding the acquisition of the
Boat are not really in dispute, certain central issues are in dispute and the interpretation of agreed facts
is also a matter of disagreement. There was a great deal of material in the oral evidence which I do not
need to deal with. I find the following facts admitted or proved.
1. The parties first met in late 1981. They re-met in about May 1982 shortly after which they
became lovers. Mr Prance was married at the time to the wife to whom he has at all times remained, and
remains, married. Mrs Rowe was widowed. Their relationship became very close and loving on both
sides. Mr Prance said on a number of occasions over the next year or two that he would divorce his
wife and marry Mrs Rowe to live with her, although he did not leave his wife at this time. Mr Prance
and his wife then lived in a property known as Old Soar Manor (“Old Soar”) a substantial property
with a considerable acreage: Mrs Prance ran a “bed and breakfast” business to earn some money, and
there was also stabling rented out. Mr Prance had his own business which he ran from Old Soar, but it
does not appear that it produced any income for him during any relevant period. Mr Prance’s income
was derived mainly from a trust fund set up by his mother.
2. In late 1985, Mr Prance proposed marriage and Mrs Rowe agreed. The parties agreed that each of
them would sell their respective homes and buy a property in which to live together. Whether Mr
Prance could have achieved this is a different matter since his wife was living in Old Soar. He says, and
I see no reason to doubt this, that he told his wife he wanted a divorce but that she would not agree to
it. Mrs Rowe sold the property in which she was living and put her furniture into storage, but Mr
Prance did not sell Old Soar and, indeed, it is not suggested that he ever attempted to do so.
3. Mrs Rowe and Mr Prance found a house to buy together in Headcorn. This was sometime in the
spring of 1986. That purchase fell through: whether it was because Mr Prance was unable to sell Old
Soar because his wife would not agree to a divorce, or whether it was because he had second thoughts
about living with Mrs Rowe, or whether it was for some different reason, does not really matter. The
fact is that in June 1986, the sale did fall though and the relationship temporarily ceased. It was, in fact,
a very temporary break, since after a small number of weeks, Mrs Rowe and Mr Prance began seeing
each other again. Mr Prance says he told his wife everything and she made him promise not to leave
her, which he did.
4. From then on, the relationship continued until 1996. It is clear to me that it was all along a close,
loving and sexually intimate relationship. Mrs Rowe certainly saw it that way. Mr Prance, in his
witness statement, says that, when the Headcorn house fell through and the parties split for a short
while, “the moment was lost”. After that, he says, the relationship changed. He plays down, very
much, the closeness of the relationship and makes it sound unimportant, simply a matter of friends
with no commitment, albeit sexually intimate. I reject that evidence. Indeed, in his oral evidence, after
attempts to maintain the position set out in his witness statement, he accepted that the relationship
was really a close and loving one right up to the end in 1996 – or at least that that was how he projected
the relationship to Mrs Rowe.
5. It is one of the more remarkable aspects of their relationship that they spoke on the phone every
day, often more than once, throughout the 14 years from 1982 to 1996 when their relationship finally
came to an end, with the possible exception of times when Mr Prance was on holiday with his wife and
a few other occasions. He would, as he accepts, always say at the end of their conversations that he
loved her: and that was how, I have no doubt, she perceived their relationship, whatever its ups and
downs, until the end in 1996.
6. Sometime in about 1987 Mr Prance acquired an aeroplane: he held a pilot’s licence. There had
been talk about his building a plane, but, realistically, that was abandoned in favour of a purchase. He
kept this plane – in which Mrs Rowe had no beneficial interest – in Headcorn. They flew together a
great deal visiting the Channel Islands and European destinations. When the plane was sold the
proceeds of sale were used to pay the deposit on the purchase of the Boat in the circumstances which I
describe later. Mr Prance, in his witness statement, says of this time this: he “recognised that our
relationship had passed its peak of intensity although we still very much enjoyed each other’s
company”. This again, in my view, is a distortion of the reality – at least of how Mr Prance presented
the relationship and its importance to him to Mrs Rowe.
7. Sometime in 1990, Mr Prance and Mrs Rowe had a conversation in which he said that everything
would be perfect if he could buy out his wife from Old Soar so that he and Mrs Rowe could live there
together. When asked in cross-examination about this, he said it would have been ideal because he
would have had all his machinery there – used, as I understand it, in his business - and would have
been able to stay in the property he loved. He explains this as simply a description of what might have
been; but he says that he never contemplated it because he had no intention of leaving his wife. Mrs
Rowe took it rather differently as another suggestion of a way of giving effect to what she wanted and
what she believed Mr Prance had always promised her, that is to say that they should have a home
together. She accordingly obtained a valuation of Old Soar with a view to a buy-out of Mr Prance’s
wife. I cannot accept Mr Prancès explanation of what he said. He must surely have been serious about
the possibility of such a buy-out. However, Mr Prance did not buy out his wife: indeed, he says he
never raised the question with her because he knew she would not agree to it to enable him to live with
Mrs Rowe. This episode is not, perhaps, central to the issues I have to decide, but it does indicate to
my mind the seriousness with which Mrs Rowe viewed the relationship; it also shows either that Mr
Prance shared that view or that he was unwilling to share with Mrs Rowe his true attitude if it was
different.
8. During 1993, Mr Prance failed his medical examination for his pilot’s licence renewal and decided
to sell the plane. He had been talking with some sailing friends and came up with the idea of buying a
yacht. He had identified a possible purchase in a yachting magazine, and discussed with Mrs Rowe his
idea that they should sail the world together for an indefinite period. I accept Mrs Rowès evidence that
he said that he would divorce his wife and sell Old Soar. He would use the proceeds to buy her a house
and that he would buy a boat to share with Mrs Rowe which they would live on together and sail the
world. They made plans to sail first to the Mediterranean and then on to the West Indies. Mr Prance
admits these plans (although not the statement that they would share the boat in the sense of sharing its
ownership) and says that he envisaged the voyage would last about two years although I find that that
was not mentioned to Mrs Rowe.
9. What about Mr Prancès wife in all this? One might think that permanent separation or divorce
was in Mr Prance’s mind. But he says not. On the contrary, he says that he would probably have
returned to live with his wife after the round-the-world trip, and thought she would have no problem
with that notwithstanding that he had been off sailing the world with another woman for two years. He
did not, of course, tell Mrs Rowe of this thinking. It is absolutely clear to me that she would never have
countenanced going off round the world with Mr Prance on that basis.
10. Eventually, the two of them found the Boat (which was then called Butterfly), a much more
substantial and expensive yacht than the one Mr Prance had spotted in the magazine. It is clear that
Mrs Rowe was heavily involved in the finding of the Boat and in the negotiations for its purchase.
There is one aspect of Mr Prancès evidence which I should mention here because it demonstrates the
unreliability of his evidence. On 21 February 1994, the agent selling the Boat wrote to Mrs Rowe – she
had been dealing with the negotiation – and was clearly under the impression that she would have an
interest in the Boat. By March, however, the same agent was writing to Mr Prance not to Mrs Rowe or
to them jointly. That is not in itself surprising since both had been involved and, ultimately, Mr Prance
was responsible for providing the purchase price. On the first day of the hearing, all this
correspondence was put to Mr Prance in cross-examination and he was asked many questions. He did
not remotely suggest that the reason for the change of addressee was because he had told the agent that
the agent was in error in writing to Mrs Rowe and that he was to be the sole owner. The next morning,
Counsel returned to this correspondence. Mr Prancès instant - and in view contrived - response, was to
say that he had expressly told the agent, after the letter to Mrs Rowe, that he was in error in his letter
and that he was to be the sole owner of the Boat. I do not believe any such conversation took place
between Mr Prance and the agent as a result of the letter to Mrs Rowe.
11. As it happens, Mr Prance and his wife decided to sell Old Soar. Mr Prance puts this decision at
the end of 1993, although the property was not sold until December 1994. Whether Old Soar was sold
to enable Mr Prance to raise the funds to buy the Boat, or whether the decision to sell provided the
opportunity to buy the Boat does not really matter. The fact is that part of the proceeds of Old Soar
were necessary for the eventual financing of the Boat. More precisely, part of those proceeds were
used to discharge a bridging loan (raised by Mr Prance and his wife), the proceeds of the plane having
been used to fund the deposit.
12. Mrs Rowe herself gave up her rented house and put her furniture in storage in order to base
herself on the Boat. I note here that she claims to have had an oral option to purchase the house: but I
do not attach importance to that since (a) it was not in writing and therefore unenforceable and (b) was
of no value because it was an option to buy at market value. Unfortunately, she gave notice to her
landlord before the Boat purchase had been finalised. In the result, she had to take a holiday let to
provide herself with a home until the boat purchase was complete. Thereafter, for her the Boat became
her base even though she was there predominately at weekends only. She did not like to be there alone.
When not there, she returned to Kent where she stayed in bed and breakfast accommodation or holiday
lets. Mr Prance, even after the Boat was acquired, still had to go to Kent regularly to wind up his
business. He would then stay in the house that his wife lived in and which had been bought with part of
the proceeds of Old Soar. In his oral evidence, his attitude was that that was his home: the Boat was
simply a leisure item and although fully equipped for living was not his home. However, in writing to
Mrs Rowe on 24 June 1996 he says that his visits to Kent are at last coming to an end with the end of
his business and hopes that they “will still be able to sail and live together on the boat that you so
aptly named.” I should also mention that in that letter he uses language which I read as a recognition
that the Boat was jointly owned, although Mr Prance tried to explain it otherwise when he writes
“You must remember that we were going to share the boat together, this we have done and in
my view, with considerable success what good time we have, now that we are capable sailing
Edwardian Castle together”.
13. There is no doubt that in many conversations both before and after the acquisition of the Boat,
Mr Prance referred to the Boat as “ours” or “our boat”. In his witness statement, he says that he meant
this in the sense that people might refer to the hotel or restaurant they visit together as “our” hotel or
restaurant; and that he would refer to the previous boats he had owned as “our” boat to the crew he had
on board. In oral evidence, he gave a rather different explanation. He said he did not like to boast, and
preferred to refer to the Boat as “our” boat so as to remove the spotlight - my word not his - as it were
from him. Apart from being an inherently unconvincing explanation in the context of conversations with
Mrs Rowe, it sits very uncomfortably with his attitude to the Blue Ensign. He said that he wanted to
be able to fly the Blue Ensign on his yacht as the sole owner of the yacht: it was “pride of ownership”
as put by Counsel for Mrs Rowe and accepted by Mr Prance. I found all that very unconvincing. I
consider that Mr Prance’s use of the word “our” on many occasions was a reflection of how he wanted
Mrs Rowe to think things were. It was the only expression of his intention and it is the effect of those
words with which I am concerned.
14. At about the time of the purchase, there is no doubt that consideration was given to the
purchase of a land base as well as the Boat itself. Mr Prance says it was never his idea or desire to buy
a land base but that Mrs Rowe was keen on it. Mrs Rowe was keen on a flat in Brighton Marina but
nothing came of that. They looked together at a flat in Northany Marina where the Boat was berthed.
Mrs Rowe says – and I accept this – that no purchase proceeded because Mr Prance did not wish to
proceed.
15. That, however, leads to another important aspect of the evidence. There was, it is accepted on
both sides, a conversation in which Mrs Rowe raised the issue of her security. Mr Prance says he
responded with words to the effect that her security was his ability to sail the Boat. It is, however,
perfectly clear that Mrs Rowe was expressing concern about her financial security: the response from
Mr Prance she says - and I accept this also - was that her security was his ability to sail the boat and
her interest in it.
16. There is also the question of how the Boat came to be registered in the sole name of Mr Prance.
This is the one area which I did have some doubt about the accuracy of Mrs Rowès evidence but in the
end I think it is explicable without any inconsistency on her part. She assets that she was told by Mr
Prance that the Boat could not be registered in their joint names because she did not hold an Ocean
Master’s Certificate. Mr Prance denies that any such conversation ever took place and says that he has
never held such a certificate. I am not entirely convinced that she remembered the description of the
certificate perfectly. Be that as it may, her evidence is clear that she was told she did not have some
appropriate and necessary certificate. Of course, no such certificate is necessary for yacht ownership at
all. But if Mr Prance did say something to that effect, it is strong evidence of ownership on the part of
Mrs Rowe: otherwise Mr Prance would not have made such a statement but would have said - if there
was an occasion for him to need to say anything at all - that the Boat was entirely his. My doubt about
Mrs Rowe’s evidence on this aspect arose from her own evidence that she never expressly asked Mr
Prance to put the Boat into their joint names – although her consistent evidence was that it was always
understood that the Boat would belong to them both. If she never asked, I wondered, why should Mr
Prance raise the subject. The answer is that it is perfectly possible for the subject of registration to have
arisen in conversation without that having been as the result of a request by Mrs Rowe to be registered.
On this straight conflict of evidence, I prefer Mrs Rowe’s version of events to Mr Prance’s.
17. There is another incident - nothing to do with the Boat – which is relevant to the issue of
credibility. As I have said, this long relationship was one of apparent closeness and love. There was
also a constant theme running through it which was that Mr Prance and Mrs Rowe would at some time
live together: they would share a home and, in Mrs Rowe’s mind I have no doubt, they would marry.
Whether Mr Prance did or did not envisage the last – marriage – I do not know, but I cannot accept that
he did not know that that was what Mrs Rowe thought the plan was going to be. It is against that
background that the issue of the rings arises. Mr Prance and Mrs Rowe, on one of their trips to
continental Europe, visited a jeweller in Eider Oberstein. They had rings made for them - Mr Prance’s a
signet ring and Mrs Rowe’s a band of the wedding ring type. She says that the two rings were, indeed,
intended as wedding rings. He says that hers was just a present from him with a grape-and-vine design
on it as she was attached to that design which she had used in her own work. On this, I again prefer to
account of Mrs Rowe and while it has no direct bearing on the issue of ownership of the Boat, it
reflects the true nature of the relationship and gives some indication of Mr Prancès reliability as a
witness.
18. Finally, I should deal with the events of 1996 leading up to the final split between the two of
them. Mrs Rowe, having finally lost patience with Mr Prance’s promises that they would be together,
demanded her share of the Boat’s value. Fearing that it would be sold and that she would see nothing,
she had the Boat arrested. Eventually, the Boat was released against undertakings to pay the half of the
proceeds of sale into a solicitor’s account where it now sits earning interest pending the outcome of
these proceedings. Notwithstanding the arrest and the existence of these proceedings, Mr Prance and
Mrs Rowe got together one last time and they decided yet again to buy a house together. They found a
house at Northiam. Mrs Rowe says the house was to be in joint names: and I accept that.
19. Mr Prancès evidence on this aspect is extraordinary. First, he says in answer to the question
whether the house would be in joint names that that would be the understanding – without going as far
as to say that that was discussed. It does appear that the house was intended by both of them to be in
joint names. He draws a sharp distinction here between the house which he says he would expect to be
jointly owned and the Boat where no such expectation arises. This is so even though the Boat was to be
as much the home – in the sense of being the main place where all the ordinary aspects of living are to
be carried out – as the house. Moreover, Mr Prance’s case is that he would only agree to the joint
purchase if Mrs Rowe abandoned her claim to half the proceeds of the Boat. That makes no sense: the
proceeds of the Boat sitting in the solicitors’ account were to go towards the purchase price of the new
house: Mrs Rowe was to have a half share in that house so that the question of the ownership of the
money would become wholly academic and it would make no difference at all whether or not she
abandoned her claim. That only makes sense if all along he was intending, contrary to what he says, to
take the entire beneficial ownership himself and, I think, thereby deliberately deceive Mrs Rowe.
20. However, what happened in practice was that he instructed his agents/ solicitors that the house
was to be bought in his sole name. And in answer to a question as to why that was to be done he
replied that it had to be in sole name because his solicitor was acting in the purchase and his solicitor
could not act for Mrs Rowe in the light of the litigation. I simply do not begin to understand that
answer and it was not explained.
21. Mr Prance’s evidence on this aspect (the 1996 house purchase) is entirely unreliable.
0. There was evidence about Mrs Rowe’s expenditure of time on domestic tasks about the Boat
and money on food. I do not need to go into those since, in the event, nothing in my judgment
turns on them.

Argument and Conclusions

Mrs Rowe’s case is put in two ways.
First, it is said that there is an express declaration of trust; the case is similar to Paul v Constance
where oft repeated statements that “the money is as much yours as mine” were sufficient to create a
trust. So it is said in the present case that the regular use of “our” in relation to the Boat, coupled with
the explanation why the Boat was not registered in joint names establishes that the Boat was held by
Mr Prance on trust for himself and Mrs Rowe equally. It is pointed out that there is no need for writing
in the case of an item of personal property such as a boat to create an express trust. There is therefore
no need to rely on the cases concerning land where, absent writing, it is necessary to rely on a
constructive trust to establish the beneficial interest.
 Secondly, it is said that a constructive trust arises. This is a constructive trust in the first category
set out by Lord Bridge in Lloyd’s Bank v Rosset (similar to the first category considered by Nourse LJ
in Grant v Edwards) that is to say of an agreement to the effect that there should be a beneficial interest
in Mrs Rowe. It is accepted that a person seeking to set up such a constructive trust has to show a
detriment to himself, but it is said that there is sufficient detriment in Mrs Rowe giving up her tenancy
and putting her furniture into storage; reliance is also placed on the domestic work and purchase of
food. It is also said that the agreement or understanding that there should be a beneficial interest also
quantified that interest at one half.
In my judgment, Mrs Rowe is entitled to succeed under the first way in which the case is put. In the
light of my findings of fact in relation to
0. the intended meaning in the use of “our” in relation to the Boat on frequent occasions (viz that it
was intended by Mr Prance to be understood by Mrs Rowe as indicating her beneficial interest)
0. the discussion concerning “security” (in which Mr Prance indicated that her security was her
interest in the Boat) and
0. the statement by Mr Prance concerning the registration of the Boat (viz that it was registered in
his name alone because she did not have an Ocean Master’s Certificate), I am satisfied that Mr
Prance effectively constituted himself an express trustee of the Boat; writing is not required
since we are dealing with personal property in relation to which there is no formality.
As to the size of the shares of Mr Prance and Mrs Rowe I am satisfied that they should be equal.
Nothing express was said to that effect, but the regular use of the word “our” indicates to me an
intention that there was no distinction to be drawn by Mr Prance between himself and Mrs Rowe so
far as concerned ownership of the Boat. Moreover, the discussion about security indicates that Mrs
Rowe was intended to have a substantial interest. If I am reading too much into the first of these factors
(the use of “our”) in deciding that it points to equality, and given also that the second factor (the
reference to security) does not necessarily require equality, I consider that I should apply the maxim
that equality is equity and hold that the shares are equal. I should add that I do not consider that the
statement concerning the registration of the Boat assists in determining the size of the respective shares.
That makes it unnecessary to consider the second way in which the case is put. While it is clear, on
my findings of fact, that a beneficial interest was intended and while I am satisfied that there was
sufficient detriment to Mrs Rowe in giving up her flat and storing her furniture, the appropriate size of
her share applying constructive trust principles alone is not clear.
Accordingly, Mrs Rowe’s claim succeeds.