Hamersely Invest Anstalt v Christina Grace Haynes

JOANNE WICKS KC sitting as a Judge of the High Court: Introduction

1. This case concerns a valuable property in Holland Park, London (“ the Property ”), which is the home of Christina Haynes and her two minor children, a son and a daughter. The registered proprietor of the Property is Hamersley Invest Anstalt (“ HIA ”), a Liechtenstein Anstalt associated with Mark Austin, who is Ms Haynes’ ex-partner and father of the children. It is the latest instalment of a lengthy battle between Ms Haynes, on the one hand, and Mr Austin and/or HIA on the other, in which there have been many court hearings, both at first instance and on appeal.

2. There are two sets of proceedings before the court: i) Claim Number PT-2021-001079 is a possession action brought by HIA against Ms Haynes, by which it seeks possession of the Property and damages for trespass (“ the Possession Proceedings ”). Ms Haynes defends these proceedings. She also counterclaims for a declaration that she has a beneficial interest in the Property by way of an express or constructive trust or proprietary estoppel (a claim in restitution has not been pursued). ii) Claim number PT-2023-00561 is an action brought by Ms Haynes for the sale of the Property (“ the Sale Proceedings ”) pursuant to two charging orders made in proceedings in the Family Division under the Children Act 1989 (“ the Children Act Proceedings ”): (1) an order made by His Honour Judge Oliver on 17 December 2021 that the interest of Mr Austin in the Property, if any, shall stand charged with payment of the sum of £210,364.64 plus interest at 8% per annum from 17 December 2021 and costs (“ the First Final Charging Order ”); and (2) an order of His Honour Judge Oliver dated 16 September 2022 that Mr Austin’s interest, if any, in the Property stand charged with the payment of £2,750,000 together with interest at 8% per annum from 17 September 2022 (“ the Second Final Charging Order ”). HIA defends the Sale Proceedings on the basis that at the relevant time Mr Austin had no beneficial interest in the Property capable of being charged and counterclaims for orders discharging the charging orders and removal of an entry on the registered title of the Property. In the context of the Sale Proceedings, unlike the Possession Proceedings, Ms Haynes acts for the benefit of the children, in a representative or quasi-representative capacity: M-T v T [2006] EWHC 2494 (Fam) ; [2007] 2 FLR 925 at [18].

3. Whilst Ms Haynes had solicitors acting for her when both the Possession Proceedings and Sale Proceedings started, she was a litigant in person for a substantial part of them. Ms Cheryl Jones of Counsel was instructed for Ms Haynes on a direct access basis relatively shortly before the trial. I thank both Ms Jones and Ian Clarke KC and Ian Chai of Counsel, who appeared for HIA, for their excellent, succinct and focussed submissions and for the sensitivity with which they approached emotionally charged issues. Whilst Mr Austin is a party to the Sale Proceedings, he did not attend the trial. Issues

4. The key issues which I have to decide, across the two sets of proceedings, are as follows (these are distilled from the somewhat longer list of issues agreed between the parties): i) Did Ms Haynes have, prior to a consent order made in the Children Act Proceedings on 11 December 2018 (“ the Consent Order ”), any interest in the Property or its proceeds of sale by way of: a) express trust; b) constructive trust; or c) proprietary estoppel? ii) Did Ms Haynes compromise any claim to such an interest by the Consent Order? iii) Did Mr Austin, at the time of the charging orders, have a beneficial interest in the Property capable of being the subject of a charging order and, if so, of what nature and to what extent? iv) Is HIA entitled to possession of the Property and/or damages for trespass, or is Ms Haynes entitled to continue to occupy the Property pursuant to the terms of the Consent Order? v) What, if any, orders are required as a consequence of my findings on the above issues? HIA and the Austin Group Trusts

5. HIA is a Liechtenstein entity, created on 31 October 2006, shortly before the Property was purchased. I have been much assisted by expert evidence given in writing by a single joint expert, Dr Heinz Frommelt, on Liechtenstein law. He explains that an Anstalt is a Liechtenstein legal entity dedicated to permanent economic or other purposes and entered in the commercial register. Only the assets of the establishment are liable for its liabilities. In practice, the person with the economic interest in the Anstalt (the economic founder) usually sets up the establishment through a fiduciary. The fiduciary may assign the “founder’s rights” to the economic founder through a declaration of assignment without entry of the name of the assignee, a so-called blank assignment deed. Alternatively, the fiduciary may continue to hold the founder’s rights on trust for the economic founder. The person with founder’s rights forms the supreme body of the establishment and has the power to amend the articles of association, draw up by-laws, nominate beneficiaries and determine their rights, approve the balance sheet, appoint and dismiss the board of administrators and pass resolutions to terminate the establishment. In the absence of any appointment of beneficiaries, the presumption is that the holder of founder’s rights is the sole beneficiary of the Dr Frommelt sometimes translates “Verwaltungsrat” as “board of administrators” and sometimes as “board of directors”. For consistency, I shall use the phrase “board of administrators” throughout this judgment. Anstalt . Anstalts may, however, be created or come to have no founder’s rights, in which case it is necessary to specify the beneficiaries thereof. Where, as here, an Anstalt is held as an asset of a trust, it is important to bear in mind the distinction between the beneficiary of the Anstalt (i.e. the person who is entitled to capital distributions from the Anstalt , who might be considered analogous to a shareholder of a limited company, though the analogy should not be pressed too far) and the beneficiaries of the trusts.

6. HIA is part of a complex set of trust structures, sometimes referred to as “the Austin Group”, by which assets are held on discretionary trusts for Mr Austin and members of his family. Mr Austin’s 2018 financial declaration in the Children Act Proceedings (“ Form E ”) was that the estimated gross value of the assets held by trusts of which he was a beneficiary was about £66 million.

7. The history of HIA and the trust structures of which it has formed part is convoluted, but it is relevant to understanding who could act for HIA from time to time and who the beneficiaries of the Anstalt have been. There are gaps in the information and documentation available to Dr Frommelt and the court, particularly in relation to the early history, but it is possible to piece a picture together.

8. HIA was founded by a professional trust company, Industrie- und Finanzkontor Establishment, on 31 October 2006 and registered in the commercial register (which is the point at which it acquired legal personality) on 2 November 2006. This was shortly before the Property was purchased and no doubt for the purpose of that purchase. On 7 November 2006, the day Mr Austin exchanged contracts with the sellers for the purchase of the Property, a trust called the Headland Settlement was established, which held HIA’s founder’s rights as an asset of the trust. Dr Markus Wanger was trustee of the Headland Settlement and was appointed to HIA’s board of administrators. In 2008 the administration of HIA and the founder’s rights were transferred to Wanger Trust Company Limited.

9. In September 2010, Mr Austin set up the Greancoat Trust, of which Dr Wanger and Wanger Trust Company Limited were trustees. The Greancoat Trust was a Liechtenstein discretionary trust, with the specified class of discretionary beneficiaries being the descendants of the late Sydney George Owen Austin, Mr Austin’s father (and therefore including Ms Haynes’ and Mr Austin’s son and daughter). At some point around 2012, the assets of the Headland Settlement, including the founder’s rights in HIA, were transferred to the Greancoat Trust: this is shown on an organogram dated 20 August 2012.

10. On 27 March 2013, HIA’s Articles of Association were amended, declaring the board of administrators the sole and supreme body of the Anstalt and effectively terminating the rights of the founder. Under the amended Articles, the appointment of beneficiaries and determination of the extent of their benefit, plus the revocation and amendment of beneficial interests, fell to the board of administrators. On 26 April 2013, (a) by-laws were passed by the administrators, appointing Greancoat Trust as beneficiary of HIA (rather than as holder of the founder’s rights). There is no copy of those by-laws in evidence, but they are referred to in other documents; (b) revised Articles of Association, in English and German, were adopted (with the German text to prevail in case of inconsistency); and (c) the blank assignment deed of founder’s rights from Wanger Trust Company Limited, in favour of Greancoat Trust, was cancelled, being no longer necessary.

11. In 2015, the administration of the trust structures was passed from Dr Wanger and Wanger Trust Company Limited to First Trust Management AG and subsequently from First Trust Management AG to Concordanz Anstalt (sometimes translated as Concordanz Trust Enterprise) (“ Concordanz ”), of which Dr Helmut Schwaerzler was then the sole director. In September 2015 Concordanz became the trustee of the Greancoat Trust and the sole member of the board of administrators of HIA. There appears to have been a protracted dispute between Dr Wanger and Mr Austin following the removal of Dr Wanger from the trust structures, with the consequence that not all relevant documentation was passed to Concordanz.

12. On 7 February 2019, the Greancoat Trust purported to assign the founder’s rights in HIA to the Bonfor Trust (Liechtenstein), another trust in the Austin Group of which Concordanz was also trustee. The Bonfor Trust (Liechtenstein) was a Liechtenstein discretionary trust for the same specified class of beneficiaries, i.e. the descendants of Mr Austin’s father. A few days later, Concordanz, as sole member of the board of HIA, resolved to revoke the 2013 by-laws and to declare the beneficiary of HIA to be the bearer of the founder’s rights. However, as Dr Frommelt notes, the founder’s rights in HIA had been extinguished in 2013. This issue was recognised by a resolution dated 31 March 2020 by which Concordanz declared the Bonfor Trust (Liechtenstein) to be the sole beneficiary of HIA and ratified any decisions of the trustees of the Greancoat or Bonfor trusts made on the wrong assumption that the founder’s rights had been effectively assigned in February 2019. In anticipation of a move of the administration of the Austin Group away from Liechtenstein, it was also resolved to change HIA from an Anstalt without founder’s rights back into one with founder’s rights by reinstating the original Articles of Association. Dr Frommelt is doubtful whether this is legally possible under Liechtenstein law and, in any event, this part of the resolution was not then implemented.

13. The move of the Bonfor Trust from Liechtenstein to the Bahamas was effected by a resolution dated 17 August 2020 and Sterling Trustees Limited was appointed trustee. The assets purportedly assigned to Sterling Trustees Limited included the (non-existent) founder’s rights in HIA. By a declaration of trust dated 18 August 2020, new discretionary trusts were declared by Sterling Trustees Limited. The specified class of discretionary beneficiaries was stated to be Mr Austin, his adult son Anton Austin and his nephew, Craig Robinson. Caspar Roell, Mr Austin’s stepson, was named as a protector of the trust. Thus the apparent effect of the August 2020 trust deed was to exclude some people, including Ms Haynes’ and Mr Austin’s son and daughter, from the class of discretionary beneficiaries of the Bonfor Trust. I make no finding as to whether that exclusion was effective, nor as to any liability of any person if it was.

14. Although the Bonfor Trust was exported from Liechtenstein to the Bahamas, Concordanz remained sole member of the board of administrators of HIA. On 22 February 2023, Concordanz resolved to re-instate the original Articles of Association for HIA, with their references to founder’s rights (presumably with a view to those founder’s rights being held by Sterling Trustees Limited as an asset of the Bonfor Trust (Bahamas)). As I have said, Dr Frommelt is doubtful whether this is legally possible under Liechtenstein law. Witnesses

15. I heard oral evidence from Ms Haynes and Dr Schwaerzler. In addition to Dr Frommelt’s reports and responses to questions, I also have written expect evidence from Mr Sebastian Deckker on valuation.

16. Ms Haynes had drafted her own witness statement whilst she was acting as a litigant in person. It was clearly written from the heart and gives a good insight into the strain which she has been under, through long years of litigation following the breakdown in her relationship with Mr Austin. In addition to confirming the truth of her witness statement, Ms Haynes also confirmed the truth of a short passage in a response to a request for further information. She gave her evidence calmly and frankly and I found her to be for the most part a credible witness, though I bear in mind what is said in Blue v Ashley [2017] EWHC 1928 at [65]-[69] and other cases about human memory and the likely effect of long years of litigation and stress on Ms Haynes’ ability to recall events with accuracy. Ms Haynes accepted without hesitation that her evidence in the Children Act Proceedings was not consistent with her claim to a beneficial interest in these proceedings but gave unconvincing answers to questions about why that was, differentiating in a highly technical way between a present interest in the Property and a future interest in its proceeds of sale which I am absolutely sure played no part in her thinking when she completed forms and made witness statements in the Children Act Proceedings.

17. Dr Schwaerzler was, to some extent, an unsatisfactory witness. There were significant omissions from his witness statement, the truth of which he confirmed. For example, under cross-examination he referred to a meeting with beneficiaries before the decision was taken to serve notice on Ms Haynes. There is no mention of this in his witness statement, in which the decision is presented as having been made by Dr Schwaerzler alone. In other places his witness statement offered disingenuous reasons for actions taken, for example suggesting that a significant factor in the decision to serve the notice was the condition of the Property when this was, in fact, a mere excuse. Whilst it is right to say that in giving oral evidence Dr Schwaerzler was more frank and forthcoming, and careful to acknowledge possibilities he could not exclude, he was often unable to remember why particular actions had been taken. That is unsurprising for a busy professional, but he was hampered in this respect by the lack of disclosure of any notes of meetings with beneficiaries, emails communicating with them or records of his decision-making process. As a consequence, I am left to draw such inferences as I can from the other evidence and, in particular, from the timing of events when seen in the context of the Children Act Proceedings.

18. There were two particular areas of concern which emerged from Dr Schwaerzler’s evidence, although it is fair to say that neither of them have any direct impact on the issues I have to decide.

19. First, his understanding of the trust arrangements he was administering differed in a key respect from that which was apparent from the face of the documents: he was adamant that the discretionary beneficiaries of the Greancoat Trust and Bonfor Trust (Lichtenstein) were confined to male descendants of Sydney Austin, whereas the trust documents and Dr Frommelt’s report show the class of beneficiaries to be “ the descendants of ” Sydney Austin, i.e. to include both male and female descendants. Indeed, the joint instructions given to Dr Frommelt on behalf of HIA and Mr Austin stated that the beneficiaries of these trusts were the descendants of the late Sydney Austin, without differentiating between male and female descendants. Dr Schwaerzler’s evidence was that he had been told, when taking over the trust structure, that the beneficiaries were only the male descendants, but that he did not know how that had come about. If there is any formal document by which female descendants of Sydney Austin were removed from the class of beneficiaries, it was not in evidence. As I have said, I accept that Dr Schwaerzler was not given all relevant documents when taking over administration of the trust structure, but I find it surprising that he was prepared to administer HIA and the trusts on a basis which was not confirmed by any formal documentation.

20. Secondly, Dr Schwaerzler expressed surprise at finding out (when it was pointed out to him in cross-examination) that the children had apparently been removed from the class of beneficiaries upon export of the Bonfor Trust to the Bahamas, despite the fact that, as he acknowledged, the declaration of trust by Sterling Trustees had been planned as part of a single overall transaction in advance of the change of administration. I accept that his surprise was genuine, but it does suggest a lack of grip on the administration of the trust structure.

21. I am satisfied that Dr Schwaerzler was not a mere conduit for Mark Austin. I also accept that his role became difficult when the relationship between Ms Haynes and Mr Austin broke down. However, I find that the decisions which were relevant to the issues in this case were often prompted by Mr Austin and I consider that Dr Schwaerzler has to some extent allowed himself to be used by Mr Austin in Mr Austin’s dealings with Ms Haynes. Moreover, Dr Schwaerzler seems to have had fairly scant regard to the interests of the children, or son, as beneficiaries of the trust structures he has been administering. Factual Narrative and Findings

22. Ms Haynes and Mr Austin met in 2000. She was 20 and working for a luxury lifestyle magazine in London. He was 46, a wealthy businessman, and had been married twice before. He had a son from one of his previous marriages, Anton. The relationship quickly blossomed and Ms Haynes moved into live with Mr Austin at his house in Cheyne Place, Chelsea. Ms Haynes describes being very much in love with Mr Austin, but, given the differences in their ages, experience and wealth, it was an unequal relationship. They enjoyed a privileged lifestyle with frequent international travel, but Ms Haynes was very much less worldly-wise than Mr Austin. She gave up her job and became financially dependent on him. Rather than any formal allowance, he provided her with a credit card and gave her cash as needed. She would sign papers put before her without any proper understanding of what they said and did not keep copies. When Ms Haynes inherited some £60,000 from her mother’s estate, Mr Austin offered to invest it for her, but it was characteristic of their relationship that she does not know where the money in fact went.

23. At some point, Mr Austin became permanently resident in Switzerland for tax status reasons. Ms Haynes recalled this occurring in 2006, although other documents suggest it may have been earlier, in 2001. He and Ms Haynes thereafter would meet in London or abroad. From Mr Austin’s Form E it appears that this change of residence was in preparation for the sale of a business. The proceeds of sale – many millions of pounds - were placed into Austin Group trusts.

24. By 2005, Mr Austin and Ms Haynes were discussing marriage and Mr Austin spoke enthusiastically about an extravagant wedding in Ibiza the following year, but that did not take place. Instead, Ms Haynes fell unexpectedly pregnant with their son. It was clearly important to Ms Haynes to be married; she in particular wanted the child to be born to married parents and worried what her own mother would have made of her becoming an unmarried mother. Despite the talk of marriage and the purchase of an expensive engagement ring in 2007, the wedding did not, however, materialise.

25. Instead, Mr Austin and Ms Haynes looked for a suitable family home and found the Property. On 7 November 2006, Mr Austin (in his own name) exchanged contracts to purchase the Property for £5,500,000, paying a deposit of £550,000. As I have set out above, HIA had been set up shortly before this and on the same date as contracts were exchanged, the Headland Settlement was established. On 12 January 2007, the Property was transferred into HIA’s name, although Ms Haynes initially understood it to have been purchased by Mr Austin. Money for the purchase appears to have been raised from a Panamanian entity for which Dr Wanger held a power of attorney, although there was no mortgage on the Property. Mr Austin was refunded the deposit he had paid.

26. Ms Haynes recalls a conversation with Mr Austin, in the garden of the Property, before the Property was purchased. Mr Austin suggested that the money he had of Ms Haynes’ (her inheritance of £60,000) could be invested into the Property on the basis that, even if it was a small percentage, she would have made a contribution and it would give her peace of mind. She says she thought that a smart idea. There is, however, no evidence to suggest that any of Ms Haynes’ money was in fact used towards the purchase price (or that she thought it had been) and she readily accepted in evidence that the £60,000 was never put into the house.

27. On 12 January 2007, Dr Wanger, for HIA, and Ms Haynes, signed an occupancy agreement (“ the Occupancy Agreement ”), expressly governed by English law. This described Ms Haynes as “ Caretaker ” and recited that HIA desired Ms Haynes occupy the Property “ to oversee the security and maintenance of the Property, and to report to [HIA] regarding such matters from time to time ”. The Occupancy Agreement gave Ms Haynes and her family licence to occupy the Property, terminable on 60 days’ notice. By clause 2, the Occupancy Agreement provided: “[Ms Haynes] shall oversee the security and maintenance of the Property. [HIA] shall be responsible for all other obligations associated with the ownership and operation of the Property.” Whilst the Occupancy Agreement was not claimed to be a sham, its description of Ms Haynes as “Caretaker” and the imposition on her of obligations of security and maintenance were clearly intended to disguise the true position, namely that she was living at the Property as Mr Austin’s partner. Her evidence is that Mr Austin told her that it was just a formality for the tax man. It is obvious that if the tax authorities had known that Mr Austin had a partner and children in the UK that might have caused them to doubt his permanent residence in Switzerland.

28. Substantial works were carried out to the Property during 2008-2009, the proposals and invoices for which were generally addressed to HIA, although occasionally to Mr Austin or Ms Haynes. The vast bulk of the costs were paid by HIA, although some of the costs were paid by Ms Haynes, from money she was given by Mr Austin.

29. The couple’s son was born in 2007 and their daughter in 2011. Ms Haynes’ evidence, which I accept, is that they were still, at this stage, mostly happy but “ there were slight cracks ”. It was still a bone of contention that they had not married and the fact that Mr Austin was living in Switzerland, leaving Ms Haynes to bring up the children in London, was not the dream she felt she had been sold. Mr Austin reassured Ms Haynes that all would be well and that she would join him in Switzerland once the children had gone to University.

30. In 2014 there occurred a series of events on which Ms Haynes places particular reliance. By this time the relationship was under some strain due to Ms Haynes’ desire to be married.

31. On 7 March 2014, Mr Austin signed a letter addressed to the trustees of the Greancoat Trust (“ Mr Austin’s Letter of Wishes ”). It starts: “With reference to the above settlement of which I am the settlor, I should like to give you some indication of my preferences in relation to the affairs of the Trust. I fully appreciate that your discretion is absolute and that this letter is not intended to bind you in any way.” It then refers to the Greancoat Trust’s ownership of HIA and its ownership of the Property and makes reference to Ms Haynes living there with the two children, as well as to his older son, Anton. It continues: “With regard to the property, I would like to provide you with some important information which would guide you to protect my partner Ms Christina Haynes and my three biological children [names given]. Should I have any further children, I would like you to treat them equally.

1. It is the Trust’s prerogative that it can call for the sale of the property should [HIA’s] loan be called by the lender. However, I would like you to consider that neither the trust nor [HIA] should sell the property whilst Ms Christina Grace Haynes continues to want to occupy the residence and before the children have reached the age of majority (21 years).

2. Should the property have to be sold for whatsoever reason, I would like you to consider to distribute the net sales proceeds (gross sales price less costs of sale, i.e. estate agents fees, legal fees, transfer taxes etc.) after deduction of all loans for the financing of the property (the sum of the purchase price and renovations, improvements, fixtures and fitting costs) in equal parts to: • Ms Christina Grace Haynes • Mr Mark George Austin.” There then follow detailed directions as to what should happen on a sale, including that either Ms Haynes or Mr Austin should be granted right of first refusal, with a mechanism for agreeing the price; that Ms Haynes’ will regarding 50% of the Property should be considered in the event that she should die before the Property was sold; that if Mr Austin should die, the trustees should consider allowing Ms Haynes to live there and the trust should hold the net sale proceeds 50% as to Ms Haynes and 50% as to the three children. The letter concludes: “9. I may, from time to time during our lifetimes, give you further indications of our preferences in regard to this Trust.”

32. I accept Ms Haynes’ evidence that Mr Austin’s Letter of Wishes reflected discussions which she and Mr Austin had previously had.

33. On 9 March 2014, Ms Haynes flew out to Zurich. The following day, 10 March, she was taken from there to Liechtenstein, where she met with Dr Wanger and Mr Austin. On that day, Ms Haynes also signed a letter addressed to the trustees of the Greancoat Trust (“ Ms Haynes’ Letter of Wishes ”). This starts: “Reference is made to the above settlement of which I may become a beneficiary”. It refers to Ms Haynes living at the Property with the two children, and continues: “In case I should be appointed as a beneficiary, I would like to give you some indication of my preferences in relation to [the Property]. I fully appreciate that your discretion is absolute and that this letter is not intended to bind you in any way. I would like to provide you with some important information which would guide you to protect my partner Mr Mark Austin and my children [names given]. Should I have any further children, I would like you to treat them equally.” The letter continues with directions effectively matching those in Mr Austin’s Letter of Wishes.

34. Ms Haynes’ evidence, which I accept, is that she discussed the papers which were to be notarised with Dr Wanger and he assured her that her children, she and their home were now protected. She also said that they discussed how what Mr Austin and Ms Haynes had agreed privately would be adhered to in the future and formalised, in line with Mr Austin’s Letter of Wishes. There is no contemporaneous record of their discussions, although there is in evidence a list of questions for her to ask, probably drafted by Mr Austin in preparation for the meeting. This includes questions like “ why is the property in a trust? ”; “ can Mark change this letter of wishes or is it now irrevocable? ” and “ why do I have an occupancy agreement? ”. Ms Haynes understandably could not recall, at this distance in time, whether she saw these questions before the meeting with Dr Wanger, but I find that they informed the discussions which she had with him.

35. After the meeting at Dr Wanger’s office, they went to the office next door to have the Letters of Wishes notarised. Ms Haynes’ Letter of Wishes was not merely notarised but apostilled , the apostille formally verifying the notary’s ability to notarise the document. Dr Schwaerzler described the apostille as “a super-notarisation from the government”. Mr Austin left to attend to business and Ms Haynes had lunch with Dr Wanger before flying back to Britain. Her evidence was that Dr Wanger reassured her that, despite the fact that she and Mr Austin were not married, this was still security for them and she could trust him. She describes it as a friendly, rather than professional, meeting and a reassuring one.

36. Dr Frommelt explains that a letter of wishes has a similar status under Liechtenstein law as it does under English law: it is a non-binding expression of the wishes of a settlor of a trust as to how he or she would like the trustee to exercise their discretions. Under Liechtenstein law, the trustee is obliged to take the letter of wishes into account when exercising his or her discretion but is not bound to follow it, although in practice many trustees do. Against this background, Mr Austin’s Letter of Wishes makes sense. He was the settlor of the Greancoat Trust, and it is unsurprising that he should write a formal letter of wishes to its trustee. As Ms Haynes was not a beneficiary of the Greancoat Trust, there may have been some difficulty with implementing all of the provisions of the letter, although no doubt in practice some mechanism could have been found to do so if the trustee decided to follow it. But Mr Austin, as a sophisticated user of offshore trust structures, would have known, not only that it was not binding on the trustee, but also that he could revoke it at any time. He retained the power to rip up the Letter of Wishes if the relationship with Ms Haynes foundered, as his two earlier marriages had done.

37. On the other hand, to a lawyer, whether from England or Liechtenstein, Ms Haynes’ Letter of Wishes is a very odd document. She was not a settlor of the trust, nor even a beneficiary, and there is nothing to suggest that there was any intention at that time to make her a beneficiary. The trustee could not have regard to her wishes in the administration of the trust, except perhaps in a limited way as the mother of minor beneficiaries. The trustee certainly could not, without a breach of trust, give 50% of the net proceeds of sale of the Property to Ms Haynes because she asked it to.

38. Under cross-examination, Ms Haynes gave the following evidence: “Q. It's right to say, isn't it, that the letter says no more or less than you have ever been told by Dr Wanger? A. In the apostilled letter? Q. Yes. A. Yes, which is 50% of the house after it's been paid for. Q. Well, let's have a look at the letter... You appreciated at the time that you weren't a beneficiary of the Greancoat Trust, is that correct? A. It's difficult to answer that question. I don't -- I don't really know how to answer that question. In that moment, yes, but I believe by signing this I was -- had an entitlement. So I think what I'm saying -- my understanding is that before signing this document I didn't have an interest in my home. I know that to be true. Q. After having signed the document -- A. Yes. Q. -- as I understand your case, you thereafter thought that you did have an interest in your home? A. Yes. Q. And you weren't in any doubt about that in your own mind? None.” The suggestion that Ms Haynes thought, following the production of the Letter of Wishes, that she had an interest – in the sense that she was part-owner of the Property or would be absolutely entitled to a share in the proceeds if the Property were sold - is different from the evidence given in her witness statement and inconsistent with her evidence in the Children Act Proceedings. I find that she did not at the time understand herself to be a part-owner of the Property or to be absolutely entitled to 50% of the net proceeds on any future sale. However warm his words were, Dr Wanger, as a trust professional, is highly unlikely to have communicated that. Rather, she was reassured that her status, as Mr Austin’s partner, and the existence of the two children, was formally acknowledged by the trust which ultimately owned her home. She was not a caretaker, as the Occupancy Agreement made out, but somebody whose needs and whose children’s needs would be considered by the trust. From the perspective of Mr Austin and Dr Wanger, the events of March 2014 – the flying out to Zurich, the meeting with Dr Wanger as administrator of the trust, the apparently highly official addition of the apostille to Ms Haynes’ Letter of Wishes (which was even mentioned in the itinerary drawn up for her) - were an elaborate performance designed to make her feel listened to. The signature of a formal Letter of Wishes in substantially the same terms as Mr Austin’s was intended to, and did, make her feel that she had a form of equality with Mr Austin, as far as the trust was concerned. The opening passage of Ms Haynes’ Letter of Wishes held out the prospect that she might, at some unknown date in the future, become a beneficiary of the trust, like him. Ms Haynes is unlikely to have had a full understanding as to how, exactly, a Lichtenstein trust worked. However, from the discussions with Mr Austin beforehand and with Dr Wanger on 10 March 2014, it is probable that she understood that, for tax reasons, the Property was owned by a trust rather than by Mr Austin and that the function of the Letters of Wishes was to ask the trustee to administer the trust as set out in the Letters. Dr Wanger is likely to have reassured Ms Haynes that his intention was to follow the Letters of Wishes. It was intended to be positive and reassuring, but without giving Ms Haynes any legal rights. Dr Schwaerzler’s evidence was that when he took over administration of the trust structure, he was told that Ms Haynes’ Letter of Wishes was “ kind of giving her a certain comfort ”. He agreed with the proposition put to him in cross-examination that it was “ supposed to be giving her a certain comfort but no actual rights ”.

39. As I have set out above, in 2015 Dr Schwaerzler took over the administration of HIA and the Greancoat Trust from Dr Wanger. On 8 July 2016, he, on behalf of Concordanz, wrote to Ms Haynes attaching the two Letters of Wishes and saying: “The undersigned being a representative of Concordanz Trust Enterprise as the new Trustee of The Greancoat Trust herewith confirms that the attached letters of yourself and Mr Mark G Austin were handed over to us in course of the change of Trustees of The Greancoat Trust in 2015. Furthermore I confirm that Concordanz Trust Enterprise acknowledges the contents of these two letters.” He wrote again on 3 October 2016: “As board member and Trustee of the structure, which is holding the real estate with [address], I herewith confirm that we are fully aware about the fact that this is the primary residence of you and your children [named]. Mr Mark Austin has informed us, that it is his wish that a sale of the property shall not be executed as long as the lender is not calling for the loan and before your two mutual children have not reached the age of majority (age of 21)… Although we understand our position and decision making as fully discretionary I can inform you that it is our best intention to follow the wish of Mr Mark Austin.” The letter then goes on to repeat the contents of Mr Austin’s Letter of Wishes, for example: “In the case that the property shall be sold the net proceeds of such sale (gross sale proceeds less costs of sale e.g. agents fees, taxes etc shall be split between you and Mr Mark Austin in equal shares after the deduction of all loans and further costs related to the purchase, renovation of the property, improvements, fixtures and fitting costs.” It concludes: “Finally, we would like to point out again that the present structure is fully discretionary, but we will try to follow the wishes of you and Mr Mark Austin.” Dr Schwaerzler accepted that both of these letters were sent at the request of Mr Austin. In oral evidence, he sought to suggest that their purpose was to warn Ms Haynes that she had no enforceable interest in the Property or trust structure, but that is not plausible. The letters were intended to reassure Ms Haynes, not warn her. Like the two Letters of Wishes themselves, they were part of the scheme by which Mr Austin sought to provide Ms Haynes with comfort that she and the children would be looked after, despite the fact that they were not married, without actually giving her any concrete rights.

40. In January 2016, a large-scale building project had commenced at the Property comprising the construction of a mews house in its grounds. HIA signed the building contract and paid the builders. Ms Haynes, as the person living at the Property, supervised the building works and dealt with the builders on a day-to-day basis.

41. The relationship between Ms Haynes and Mr Austin broke down at New Year 2018 and rapidly became acrimonious.

42. By a letter dated 7 February 2018 addressed “to whom it may concern”, Dr Schwaerzler wrote: “I, Dr Helmut Schwaerzler, am a member of the board as well as managing director of Concordanz Trust Enterprise, which is the Trustee of the Greancoat Trust, a discretionary trust in Liechtenstein. Mr Mark Austin is the settlor of the Greancoat Trust, which is the 100% owner of [HIA], a company in Liechtenstein, of which Concordanz Anstalt is the sole board member. [HIA] owns [the Property]. Pursuing the purpose of Greancoat Trust and acting in all conscience I, as representative managing director and board member of Concordanz Trust Enterprise, the sole board member of [HIA] as well as Trustee of the Greancoat Trust, which is the 100% owner of [HIA], herewith confirm the following: Mr Mark Austin is authorised to represent me/Concordanz Trust Enterprise in all matters concerning [the Property] at to take all necessary actions in order to take possession of the mentioned property. This includes all actions to access and occupy the property as well as to stay there or to define the people who are allowed to occupy the property.” The letter attached copies of Dr Schwaerzler’s passport and Liechtenstein trade register extracts for The Greancoat Trust, Concordanz and HIA. A few days later, on 12 February 2018, Dr Schwaerzler wrote a letter in similar terms, adding an additional paragraph at the end saying: “Furthermore, I confirm, that Mrs Christina Haynes, who is currently living in [the Property], is not allowed to refuse entrance to Mr Mark Austin or to prevent him from taking possession of it. Besides that she is not authorised to change the locks or to have any other keys cut.” Dr Schwaerzler said (and I accept) that he wrote the first letter because he was aware the relationship between Ms Haynes and Mr Austin was breaking down, so he asked Mr Austin to take care of safeguarding the Property as an asset of the trust structure. He thought that Mr Austin had come back to him to say that he had had problems accessing the Property, which is why the second letter had been written.

43. A third letter, also written “to whom it may concern” dated 3 May 2018 gave Mr Austin’s personal assistant, Jayne Morton, authority to represent Dr Schwaerzler or Concordanz “ in all matters concerning the payment of expenses and costs arising with respect to the maintenance of [the Property]” and “ to pay any and all sums of money for the care, comfort and feeding of the occupants of [the Property] including but not limited to Christina Grace Haynes [and the children]”.

44. On 6 March 2018, Ms Haynes commenced the Children Act Proceedings, seeking housing and child maintenance for the children. She was represented by Russells Solicitors, Mr Austin was represented by Withers LLP. Ms Haynes made a witness statement in which she said she did not have a beneficial interest in the Property. By her Form E, she stated that the Property was owned by HIA, but that the legal ownership did not reflect the true position, which was that the Property was owned by Mr Austin. She described herself as a tenant and gave the current value of her interest in the family home as nil.

45. On 11 December 2018 Deputy District Judge O’Leary made the Consent Order, being an order reflecting a compromise achieved between Ms Haynes, as Applicant, and Mr Austin as Respondent. It recited: “Upon the Court noting that:- (i) It is a term of the compromise of the Applicant’s claim that the Respondent will make available a fund for the purchase of a new home for the Applicant and the children, as described in greater detail below; (ii) The Respondent wishes to take advice about the most tax-efficient method of providing the housing fund and accordingly it is not possible to include in this order detailed terms about the mechanism by which the housing fund will be provided; (iii) The parties will try to reach agreement about the mechanism by which the housing fund will be provided. If agreement is reached, a further order to that effect will be lodged without further attendance by the parties. In that event the further hearing set out below will be vacated by agreement…” Paragraph 4 provided that the parties agreed: “(i) The Applicant and the children will continue to live at [the Property] until the completion of the purchase of the new home, and forthwith upon completion of the purchase of the new home, shall give vacant possession of [the Property]. (ii) The Respondent will make a housing fund of £2,750,000 available for the purchase of a new home for the Applicant and the children. This is an inclusive sum and all costs associated with the purchase (including SDLT, conveyancing costs and furnishing costs) shall be paid from it. The Respondent shall be entitled to fund the purchase of the new home with a mortgage secured upon it…” I will refer to the £2,750,000 to be provided under this paragraph as “ the Housing Fund ”. There followed in the order provisions specifying the nature of the new home to be purchased with the Housing Fund and Ms Haynes’ entitlement to call for its sale and replacement. By paragraph 4(v): “(v) The Applicant shall be entitled to occupy the new home (and a replacement home if applicable) until the earlier of:- (a) [the daughter] reaching the age of 18 or ceasing full-time tertiary education (to first undergraduate degree level) whichever shall be later; (b) The Applicant’s death. (c) The deaths of [both children]. (d) Further order of the court. By paragraphs 4(ix) and (x): “(ix) the terms recorded in this order settle any entitlements that either of them might have in relation to any property in the name of the other or in which the other has any beneficial interest; (x) neither of them shall institute proceedings against the other under the Law of Property Act 1925 or the Trusts of Land and Appointment of Trustees Act 1996 or any similar legislation in any other jurisdiction.”

46. By paragraph 5 of the order, Mr Austin agreed to make a series of payments for the benefit of the children, including paying the outgoings on the Property on the same basis as previously, for as long as Ms Haynes and the children continued to live there and by paragraph 6 he agreed to make periodical payments to Ms Haynes for the children’s benefit.

47. Ms Haynes and Mr Austin agreed a further consent order, lodged on 31 January 2019, containing the detailed mechanism by which the Housing Fund was to be provided: essentially, Mr Austin would purchase the new home, with Ms Haynes entering into a tenancy agreement to occupy it rent-free with the children for the period permitted under the Consent Order. However, Mr Austin did not provide the Housing Fund.

48. Dr Schwaerzler said that he could not recollect when he first found out about Mr Austin agreeing that Ms Haynes could stay in the Property pending purchase of a new property under the terms of the Consent Order. Given the relationship between Mr Austin and Dr Schwaerzler revealed by the evidence and the extent to which they liaised with one another regarding the Property, I infer that he knew about it shortly after the Consent Order was made, if indeed he did not know about the proposals in the Consent Order before it was made. Mr Austin would have been careful to ensure that the Property was treated as HIA’s asset, not his own, because to do otherwise would have threatened the tax-efficiency of the structures he had created.

49. The Housing Fund was to be provided by Mr Austin and there was no requirement that it be provided by HIA or from any particular trust. However, by the Autumn of 2019, Mr Austin and Dr Schwaerzler were considering either raising a mortgage on the Property, or selling it, for the purpose of providing the Housing Fund. Dr Schwaerzler issued a further letter dated 15 November 2019 “to whom it may concern” stating: “Mr Mark Austin is authorised to represent [HIA] in all matters concerning the sale of [the Property]. This includes all actions to access and occupy the property as well as to stay there or to define the people who are allowed to occupy the property. Furthermore, I confirm that Mrs Christina Haynes, who is currently living at [the Property] is not allowed to refuse entrance to Mr Mark Austin or to prevent him from taking possession of it.”

50. Mr Austin made contact with Savills for the purpose of obtaining a valuation of the Property and this was followed up by a letter of 24 October 2019 from Dr Schwaerzler with instructions to produce a “red book” valuation of the Property, one copy to be sent to Concordanz and a second to Bank Frick & Co AG. As appears from the letter, Mr Austin had negotiated a fee for the valuation, which would be deducted from any commission charged by Savills if it were instructed to sell or rent the Property. The valuation, dated 30 October 2019, was said to be required for “ immediate loan security purposes in connection with a proposed facility ” to be granted to HIA and led to a £3 million loan facility offer from Bank Frick to HIA dated 14 February 2020. By the resolution dated 31 March 2020 referred to in paragraph 12 above, HIA resolved to accept that offer. Dr Schwaerzler could not recollect whether the purpose of the loan was to provide the Housing Fund, but the inference that it was is strong, given that the amount of £3 million broadly reflects the amount of the Housing Fund and an order for costs in favour of Ms Haynes. Moreover, by letter dated 14 October 2020, Dr Schwaerzler wrote to Mr Austin “ regarding the request of the members of the specified class of the Bonfor Trust as (indirect) beneficial owners of [HIA] to acquire a property in London worth GBP £2,750,000 ”. Clearly this was a request to do what the Consent Order required, as regards the provision of a new home for Ms Haynes and the children. The letter indicated that HIA had applied for a loan to purchase such a property but the turmoil on the markets due to Covid meant that HIA would not be able to service any debt obligation. The letter concludes: “I must therefore inform you that [HIA] currently does not have or is unable to raise the necessary funds to purchase the above mentioned property. Notwithstanding, [HIA] is in negations (sic) for the sale of [the Property] to provide the necessary liquidity to meet the request of the members of the specified class mentioned above.” It appears from the valuation report of Mr Deckker that the Property had in fact been on the market from June 2020.

51. Given what was to come shortly afterwards, what is striking about these exchanges is how obviously untroubled Dr Schwaerzler was about the idea that HIA and the trust structure would be used to raise money to buy another property to house Ms Haynes and the children. That was, I find, because the proposal was that the new property would remain an asset of HIA or the trust structure, with Ms Haynes having a tenancy agreement allowing her to occupy it, which was essentially the same arrangement as applied to the Property. It did not threaten the tax-efficiency of the trust and Anstalt structure. Moreover, Dr Schwaerzler obviously knew that Ms Haynes and the children continued to occupy the Property pending the purchase of a new home and there is nothing to suggest that he considered that to be problematic in any way.

52. The relaxed view taken by Dr Schwaerzler, however, was about to change. By an order dated 16 October 2020, His Honour Judge Oliver dismissed Mr Austin’s application for an order that the children should both live with him and determined that the son should live with Mr Austin and the daughter with Ms Haynes, with each also having time allocated to the other parent. On 28 October 2020, Dr Schwaerzler wrote to Ms Haynes (“ the Termination Notice ”): “In my capacity as director of [HIA] and under the terms of the Occupancy Agreement dated January 12, 2007 I herewith officially notify you as Caretaker that you and your family must vacate [the Property] within (60) days after the delivery of this Owner Termination Notice. [HIA] must now move to contract of the sale of [the Property] granting vacant possession. Please acknowledge in writing this Owner Termination Notice and agreement to vacate.”

53. Dr Schwaerzler could give no convincing explanation as to why the Termination Notice was served when it was. In his witness statement, he claimed to have become aware in early to mid-2020 that Ms Haynes was “ allowing [the Property] to fall into disrepair ” and produced a schedule with photographs of purported “damage” to the Property, contrasting this with the good condition which Savills had reported in their valuation the previous year. He implied that the Termination Notice was given in part because Ms Haynes “ did not, as she was required to under the Caretaker Agreement, keep [the Property] in good condition ” and that if she was allowed to continue in occupation, that might diminish the value of the Property. He said he made the “ difficult decision to serve notice on Ms Haynes to leave [the Property] so that I could preserve its condition so that it could be sold for the best price possible ”. In my judgment, the explanation that the Termination Notice had anything to do with the condition of the Property was utterly disingenuous. The so-called “damage” comprised, firstly, an art wall which Ms Haynes had allowed the children and their friends to decorate, which Mr Austin had photographed; secondly, an issue with a bedroom door which Ms Haynes had asked Mr Austin to fix, and had been rectified; and thirdly, the replacement of the front door of the Property by the builders as part of an upgrade, which had been invoiced to HIA. In total the costs came to £8,600, of which £7,000 related to the replacement of the front door. These were minor instances of ordinary maintenance of a lived-in property which HIA had paid for, in the same way it had paid for works to the Property throughout its ownership, and not evidence that Ms Haynes was allowing the Property to fall into an unacceptable condition.

54. In oral evidence, Dr Schwaerzler moved away from this explanation for the Termination Notice and said that he had had discussions with the entire circle of beneficiaries, who expressed a wish to get the Property onto the market which, he said, he had been told by estate agents was only possible if the Occupancy Agreement was terminated. I do not accept this rationale for the Termination Notice either. It is an everyday occurrence for properties to be marketed for sale whilst they are being lived in, with vacant possession being provided on completion. Ms Haynes had allowed Savills in for the purpose of valuing the Property and there is no evidence to suggest that she would prevent potential buyers coming to view it. She wanted the Housing Fund provided and was taking action in the Children Act Proceedings to enforce Mr Austin’s obligation to provide it. Dr Schwaerzler had had no discussion with Ms Haynes about the move and had no reason to think that if the Property was sold and a new property purchased with the Housing Fund provided from the proceeds of sale, Ms Haynes and the children would not happily move into it. In the circumstances, I find that service of the Termination Notice was prompted by Mr Austin’s desire for revenge against Ms Haynes when his application for an occupation order failed. The 60-day period in the Termination Notice expired on Ms Haynes’ birthday: this is unlikely to have been a coincidence. Dr Schwaerzler may well not have known that was what motivated Mr Austin but, despite the reassuring terms in which he had written to Ms Haynes in October 2016, he was prepared to turn Ms Haynes and the children – at least one of which he considered a beneficiary of the trusts he was administering – out of the Property at Mr Austin’s instigation, without knowing how they would house themselves and in the middle of a global pandemic.

55. Ms Haynes obtained a without notice injunction against Mr Austin preventing her being evicted, on the basis that Mr Austin was taking steps, directly or indirectly, to remove her and the children from the Property, with HIA being involved as an interested party. The injunction was continued by order dated 23 December 2020.

56. Mr Austin did not provide the Housing Fund; he also failed to meet various costs orders made against him. By an order dated 9 July 2021, His Honour Judge Oliver made an interim charging order charging Mr Austin’s beneficial interest, if any, in the Property, with the sum of £203,136.43, interest and costs in respect of the costs orders. Mr Austin’s appeal to the Court of Appeal from the interim charging order was dismissed: see Austin v Haynes [2021] EWCA Civ 1919 .

57. On 21 July 2021, Ms Haynes’ solicitors served the interim charging order on HIA. This prompted Dr Schwaerzler, having taken legal advice, to write to Mr Austin by letter dated 23 July 2021, complaining that he had entered into an agreement with Ms Haynes granting her a right to continued occupation of the Property for an indeterminant period of time, which, the letter claimed, he had no authority to do, causing it to become necessary to commence costly court proceedings to recover possession of the Property. The letter said that the trustee of the trust controlling HIA (by this stage, Bonfor Trust (Bahamas)) had informed the protector of the trust of Mr Austin’s actions and had decided to suspend distributions until after the Property had been fully recovered. Whilst this letter does not expressly mention the interim charging order, Dr Schwaerzler acknowledged in evidence that it was that which had prompted the letter of 23 July. He recalled that “ this was when we were having a direct impact on our assets through the Family Court proceedings .” I find it was the idea of a charging order, made on the basis that Mr Austin had a direct beneficial interest in the Property, and therefore threatening the carefully-constructed trust and Anstalt structure, not Ms Haynes’ and the children’s continued occupation of the Property, which was the primary concern.

58. On 17 December 2021, the First Final Charging Order was made, plus an interim charging order charging Mr Austin’s beneficial interest, if any, in the Property with the Housing Fund and interest. HIA’s application for permission to appeal the First Final Charging Order was dismissed by Moylan LJ on 19 August 2022.

59. The second interim charging order was made final by the Second Final Charging Order on 16 September 2022. Shortly prior to the Second Final Charging Order being made, on 8 September 2022, the protector of the Bonfor Trust (Bahamas), Caspar Roell, made a declaration excluding Mr Austin from the trust. Ms Haynes’ claim to an express trust

60. Ms Haynes claims that the letter from Dr Schwaerzler of 3 October 2016 amounts to an express declaration of trust in her favour. In oral submissions it was clarified that the alleged trust property is 50% of the net proceeds of sale of the Property, after deduction of all loans and costs relating to the purchase, renovation of the Property, improvements, fixtures and fitting costs.

61. This claim is defended by HIA on the following grounds: i) that HIA was not capable of declaring such a trust in Ms Haynes’ favour; ii) that the letter was not written on behalf of HIA; iii) that, on its proper construction, the letter is only a statement of non-binding intent to give effect to the then wishes of Mr Austin, not an express, binding declaration of trust; and iv) that, alternatively, the trust was fully discretionary and in the absence of any resolution to give effect to the distribution contended for, Ms Haynes has no interest in the Property and no interest in priority to the Greancoat Trust.

62. The claim to an express trust and the response to it were introduced by amendments I permitted during the trial. The first line of HIA’s defence, namely that HIA lacked capacity to declare such a trust, was the subject of further evidence from Dr Frommelt and written submissions from the parties following the trial. Had I concluded that, subject to any question of HIA’s capacity, Ms Haynes had established her claim to an express trust, I would have sought further submissions on Dr Frommelt’s evidence and on the effect of section 26 of the Land Registration Act 2002 (which protects disponees of interests in registered land where there would otherwise be a limitation on a registered proprietor’s right to dispose of a registered estate). However, as I have concluded, for the reasons below, that Ms Haynes’ claim fails for other reasons, I need not take this further.

63. I do not accept HIA’s contention that the letter of 3 October 2016 was not written on behalf of HIA. It is signed by Dr Schwaerzler on behalf of Concordanz, which was the sole member of the board of administrators of HIA at the time. The opening passage in the letter starts: “As board member and Trustee of the structure, which is holding the real estate with [address of the Property]…” It is true that the letter of 3 October 2016 followed Dr Schwaerzler’s letter of 8 July 2016 written on behalf of Concordanz as trustee of the Greancoat Trust enclosing, and “ acknowledging the contents of ” the two Letters of Wishes. It is also true that the contents of the 3 October 2016 clearly follow the terms of Mr Austin’s Letter of Wishes. Nevertheless, in sending the letter, Dr Schwaerzler deliberately decided to send it on behalf of Concordanz in its dual capacity as board member of HIA, the owner of the Property, as well as trustee of the Greancoat Trust.

64. The central question in relation to the letter of 3 October 2016 is whether, objectively, it is to be interpreted as an immediate, binding, declaration of trust. No formal form of words is necessary to create a trust, but the “three certainties” must be present: certainty as to the intention of the settlor to create a trust, (certainty of words); certainty as to the property to which the trust is to attach, (certainty of subject matter); and certainty as to persons or objects who are intended to benefit (certainty of objects): Knight v Knight (1840) 49 ER 58. Whether an intention to create a trust is sufficiently evinced is in each case a question of objective contextual interpretation: Underhill and Hayton, Law of Trusts and Trustees (20 th edn) at Article 10. The basic principles of the interpretation of contracts and other documents are well-established: the court is concerned to ascertain the objective meaning of the language in which the parties have chosen to express their agreement, in its documentary, factual and commercial context. That meaning is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the document to mean. Both the text and the context are tools in the process of interpretation: Lewison on Contracts, 8 th edn, page 1.

65. Ms Jones laid stress on the mandatory language used in places in the 3 October 2016 letter, for example that if the Property were sold the net proceeds of sale “ shall ” be split between Ms Haynes and Mr Austin. However, I agree with Mr Clarke that this is to take passages out of their context and to fail to have regard to the whole of the letter and the exchanges which preceded it. The reasonable reader would understand that the letter reflected the terms of Mr Austin’s Letter of Wishes, a copy of which Dr Schwaerzler had sent to Ms Haynes in July. That Letter of Wishes itself acknowledged the discretionary nature of the trustee’s decision-making power and that the letter was not binding on the trustee. Moreover, the letter of 3 October 2016 itself made clear that it was no more than a statement of present intention on behalf of HIA and the trustee, not a binding commitment: immediately before the substantive content it states: “Although we understand our position and decision making as fully discretionary I can inform you that it is our best intention to follow the wish of Mr Mark Austin.” It concludes, similarly, with: “Finally, we would like to point out again that the present structure is fully discretionary, but we will try to follow the wishes of you and Mr Mark Austin.”

66. In my judgment, therefore, the letter of 3 October 2016 lacked certainty of words: it objectively lacked the intention to create an immediate trust of the Property or its proceeds of sale in Ms Haynes’ favour. On that basis, I do not need to consider HIA’s argument that any trust was only a discretionary trust. Ms Haynes’ claim to a constructive trust

67. Ms Haynes’ claim to an interest under a common intention constructive trust is founded on the express representations and assurances of Dr Wanger, made at the time that Ms Haynes signed her Letter of Wishes in 2014.

68. Ms Jones acknowledges that, as Ms Haynes is not a legal owner of the Property, the onus is on her to demonstrate firstly that she has an interest in the Property and secondly the extent of that interest: Stack v Dowden [2007] UKHL 17 , [2007] 2 AC 432 ; Kernott v Jones [2011] UKSC 53 , [2012] 1 AC 776 . She will need to show a common intention between her and HIA that she should have a beneficial interest in the Property and that she acted to detriment on the basis of that common intention, so that it would be inequitable for HIA now to deny her that interest.

69. In many cases it is necessary to infer the parties’ common intention from other facts and conduct, but common intention may be founded on evidence of an express agreement, arrangement or understanding, albeit informal, between the parties that the property is to be shared beneficially: Lloyds Bank v Rosset [1991] 1 AC 107 at 132E-G. Examples of cases falling into this category are Eves v Eves [1975] 1 WLR 1338 and Grant v Edwards [1986] Ch 638 , in which the male partner led the female partner to believe that the property would belong to them jointly, but put forward a specious excuse as to why her name could not be on the legal title: Rosset , at 133C-F. Thus: “an intention is sufficiently established if A induces B to believe that B will have an interest in the property, even if A does not in fact so intend”: Megarry & Wade, The Law of Real Property 10 th edn at 10-026A.

70. Discussions about a beneficial interest alone, however, are not sufficient to establish a constructive trust. The person claiming a beneficial interest must have acted to their detriment in reliance on the common intention: Grant v Edwards , above, at 648G-H; and in the reasonable expectation that they would thereby acquire an interest in the property: Gissing v Gissing [1971] AC 886 at 905C-D. In Megarry & Wade, above, at 10-27, it is suggested that the extent to which acts unrelated to the acquisition or improvement of the property will satisfy the requirement of detriment has not been finally determined in relation to common intention constructive trusts, although they have been accepted in estoppel claims. It would be surprising if the concept of detrimental reliance meant something different in a constructive trust claim from a proprietary estoppel claim, and the submissions made to me proceeded on the basis that the requirements were the same in either case.

71. I have found above that Ms Haynes did not understand, from her conversations with Dr Wanger and the production of the two Letters of Wishes in 2014, that she had an immediate 50% interest in the Property or its net proceeds of sale. Ms Jones submitted that what Dr Wanger was offering Ms Haynes, and what she understood she was getting, was “security”. In my judgment, however, that is insufficient to establish a common intention constructive trust. Where such a trust is established, the claimant acquires a beneficial interest in the property – they are, in a meaningful sense, an owner or part-owner of it. Therefore the common intention which is necessary to establish the trust must be an intention that the claimant shall have such an interest. It is impossible to spell out of the Letters of Wishes any intention on the part of Dr Wanger that Ms Haynes should have an immediate beneficial interest. Reassurance that she could trust him, when it came the time to make decisions, to “do the right thing”, is not enough.

72. Consequently, in my judgment the claim to an interest under a common intention constructive trust does not succeed. Ms Haynes’ claim of estoppel

73. The third way in which Ms Haynes seeks to establish a proprietary interest in the Property is through a claim of proprietary estoppel.

74. There are three main elements to proprietary estoppel: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his or her reasonable reliance: Thorner v Major [2009] UKHL 18 , [2009] 1 WLR 776 at [29]. A more detailed summary is provided by Megarry & Wade, above, at 15-001: “(i) An equity by estoppel arises where: (a) the owner of land (O) induces, encourages or allows the claimant (C) to believe that C has or will enjoy some right or benefit over O’s property, provided that inducement etc is not specifically limited to a mere personal use of the land; (b) in reliance upon this belief, C acts to his or her detriment to the reasonably determined knowledge of O; and (c) O then seeks to take unconscionable advantage of C by denying C the right or benefit which C expected to receive. (ii) This equity gives C the right to go to court to seek relief. C’s claim is an equitable one and subject to the normal principles governing equitable remedies. (iii) The court has a wide discretion as to the manner in which it will give satisfy the equity in order to avoid an unconscionable result, having regard to all the circumstances of the case, including, but not limited to, the expectations and conduct of the parties. (iv) The relief which the court may give may be either negative, in the form of an order restraining O from asserting his or her legal rights, or positive, by ordering O either to grant or convey to C some estate, right or interest in or over the land, to pay C an appropriate amount in money, or to act in some other way. (v) The issue in any given case is whether it would be unconscionable for O to deny that which O has allowed or encouraged C to assume to C’s detriment. The courts no longer inquire (as once they did) whether the circumstances can be “fitted within the confines of some preconceived formula”. ” It is well-established that the elements of assurance, reliance and detriment are not watertight compartments: “…in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a ‘mutual understanding’ may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.”: Gillett v Holt [2001] Ch 210 at 225C-E.

75. The first element of proprietary estoppel is therefore the encouragement by an owner of property of a belief that the claimant has or will in the future enjoy some right or benefit over the property. The actual intention of the owner is irrelevant; what matters is whether the owner’s words and acts would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon: Thorner , above, at [3] – [5], [17]. Whether the assurance has sufficient clarity to establish a proprietary estoppel depends on the context in which it is made. It must be “ clear enough ”: Thorner , above, at [56].

76. The representation or assurance must relate to identified property owned, or perhaps about to be owned, by the defendant. As Lord Walker of Gestingthorpe said in Thorner at [61]: “That is one of the main distinguishing features between the two varieties of equitable estoppel, that is promissory estoppel and proprietary estoppel. The former must be based on an existing legal relationship (usually a contract, but not necessarily a contract relating to land). The latter need not be based on an existing legal relationship, but it must relate to identified property (usually land) owned (of, perhaps, about to be owned) by the defendant. It is the relation to identified land of the defendant that has enabled proprietary estoppel to develop as a sword, and not merely a shield…”

77. A number of the cases, including Gillett v Holt [2001] Ch 210 , Thorner , above, and Guest v Guest [2022] UKSC 27 , [2024] AC 833 are concerned with promises to leave property by will. These illustrate that (as Megarry & Wade’s summary above recognises), the promise which gives rise to a proprietary estoppel may be of a future interest, rather than a present one. This gives rise to two particular issues.

78. Firstly, the identified property may change between the time the assurances are given and the time the owner dies or the equity takes effect. Thus in Thorner , Peter assured David that he would become entitled to Steart Farm. As Lord Walker said: “[62]…Both Peter and David knew that the extent of the farm was liable to fluctuate (as development opportunities arose, and tenancies came and went). There is no reason to doubt that their common understanding was that Peter’s assurance related to whatever the farm consisted of at Peter’s death…This fits in with the retrospective aspect of proprietary estoppel noted in Walton v Walton [1994] CA Transcript No 479. [63] The situation is to my mind quite different from a case like Layton v Martin [1986] 2 FLR 227 , in which the deceased made an unspecific promise of ‘financial security’…” I note the distinction drawn here between the promise of an interest in identifiable property and the promise of “financial security”.

79. The second issue is that everyone knows that a testator might change their mind about their will before they die. This is an example of an issue encountered in proprietary estoppel cases more generally, namely that the assurance or representation relied upon is inherently, when made, capable of being revoked. This issue was addressed by Robert Walker LJ (as he then was) in Gillett v Holt : “The judge referred to…the decision of Judge Weeks QC in Taylor v Dickens (which has since been compromised on appeal). That was the case of the elderly lady who said that she would leave her estate to the gardener and did so, but then changed her mind (without telling him) after he had stopped charging her for his help with gardening and odd jobs. Judge Weeks rejected the claim and, at p 821, criticised [1998] 1 FLR 806 In re Basham in two respects. The first criticism was that Mr Nugee's judgment omitted the requirement of unconscionability. That criticism seems misplaced: see . The second criticism was [1986] 1 WLR 1498 , 1504A-B and 1509A-C : [1998] 1 FLR 806 , 821 "it is not sufficient for A to believe that he is going to be given a right over B's property if he knows that B has reserved the right to change his mind. In that case, A must show that B created or encouraged a belief on A's part that B would not exercise that right." For that proposition Judge Weeks referred to the decision of the Privy Council in Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd . [1987] AC 114 Taylor v Dickens has itself attracted a good deal of criticism: see, for instance, Professor M P Thompson, "Emasculating Estoppel" [1998] Conv 210, and William Swadling [1998] RLR 220; but compare the contrary view in M Dixon, "Estoppel: A panacea for all wills?" [1999] Conv 39, 46. Mr Swadling's comment is short and pithy: "This decision is clearly wrong, for the judge seems to have forgotten that the whole point of estoppel claims is that they concern promises which, since they are unsupported by consideration, are initially revocable. What later makes them binding, and therefore irrevocable, is the promisee's detrimental reliance on them. Once that occurs, there is simply no question of the promisor changing his or her mind." Mr McDonnell has added his voice to the criticism. In his skeleton argument he has submitted that Taylor v Dickens is "simply wrong". Mr Martin, while reminding the court that it is not hearing an appeal in Taylor v Dickens , has not given the case whole-hearted support. He has been inclined to concede that Judge Weeks should have focused on the promise which was made and whether it was of an irrevocable character, instead of looking for a second promise not to revoke a testamentary disposition. In my judgment these criticisms of Taylor v Dickens are well founded. The actual result in the case may be justified on the other ground on which it was put (no unconscionability on the facts); or (as Mr Swadling suggests later in his note) the gardener's unremunerated services might have merited some modest restitutionary relief. But the inherent revocability of testamentary dispositions (even if well understood by the parties, as Mr Gillett candidly accepted that it was by him) is irrelevant to a promise or assurance that "all this will be yours" (the sort of language used on the occasion of The Beeches incident in 1975). Even when the promise or assurance is in terms linked to the making of a will (as at the 1974 Golf Hotel dinner) the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise . Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd , on which Judge Weeks relied, is essentially an example of a purchaser taking the risk, with his eyes open, of going into possession and spending money while his purchase remains expressly subject to contract. Carnwath J observed that the advice to the claimant in [1987] AC 114 Taylor v Dickens "not to count his chickens before they were hatched" is : [1998] 3 All ER 917 , 929 "an apt statement of how, in normal circumstances, and in the absence of a specific promise, any reasonable person would regard—and should be expected by the law to regard—a representation by a living person as to his intentions for his will." In the generality of cases that is no doubt correct, and it is notorious that some elderly persons of means derive enjoyment from the possession of testamentary power, and from dropping hints as to their intentions, without any question of an estoppel arising. But in this case Mr Holt's assurances were repeated over a long period, usually before the assembled company on special family occasions, and some of them (such as "it was all going to be ours anyway" on the occasion of The Beeches incident) were completely unambiguous...Plainly the assurances given on this occasion were intended to be relied on, and were in fact relied on. In any event reliance would be presumed: see Greasley v Cooke ; Mr Martin accepted that, while challenging the suggestion that that case also supported any presumption of detriment.” (emphasis added). [1980] 1 WLR 1306 In Lloyd v Sutcliffe [2007] EWCA Civ 153 at [38], Wilson LJ said: “The law requires that the promisor should make clear not that the promise cannot be revoked but that it will not be revoked”. Rajah J put it this way in Spencer v Spencer [2023] EWHC 2050 at [28]: “It is…important to distinguish between mere statements of present (revocable) intentions and statements tantamount to a promise: Gillett at 227G-228F. It is not reasonable to rely on the former. The latter, on the other hand, may be reasonably understood as intended to be taken seriously and therefore reasonably to be relied upon.”

80. There must be a sufficient causal connection between the assurance and the detriment. The assurance does not need to be sole inducement for the claimant’s conduct, but it must be an inducement: Gillett v Holt , above, 226G-H. As indicated by the passage from Gillett v Holt set out in paragraph 79 above, once it is shown that a representation would have influenced a reasonable person, it is for the defendant to show that the claimant was not in fact influenced by the representation: see also Stevens & Cutting Ltd v Anderson [1990] 1 EGLR 95 at 97L-M.

81. Detriment, for the purposes of proprietary estoppel, is not a narrow or technical concept, and need not consist of the expenditure of money or other quantifiable detriment, as long as it is substantial. The issue of detriment is judged retrospectively, at the time when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded – that is, again, the essential test of unconscionability: Gillet v Holt , above, at 232D-F. See also Winter v Winter [2024] EWCA Civ 699 at [26]-[28].

82. As Lord Briggs JSC said in Guest v Guest at [9]: “Nor is the detrimental reliance to be classified as harm in any conventional sense. It is usually (and was in this case) something freely and willingly undertaken in the expectation of the fulfilment of the promise, not being daily counted as a cost, still less resented at a time when it was being incurred. Nor is it something which can necessarily or even usually be valued. In the present case, as in many where the promisee is a young person who gives up other career opportunities to work for their parents on the family farm, a measure of the supposed wages differential to date, coupled with interest, will not begin to recognise the improvement in life which further education, an independent career and the opportunities to develop their own farming or other business might have generated.”

83. Forgoing life opportunities is now a well-recognised potential head of detriment for proprietary estoppel: see e.g. Suggitt v Suggitt [2011] EWHC 903 (Ch) , [2011] 2 FLR 875 at [59], referred to in Winter v Winter , above, at [27] and Henry v Henry [2010] UKPC 3 , [2010] 1 All ER 988 at [61]. It is recognised that it is unreasonable to expect chapter and verse as to the hypothetical counterfactual life which would have been led without the assurances: Anaghara v Anaghara [2020] EWHC 3091 (Ch) at [34].

84. Where a claimant’s reliance on an assurance has resulted in both disadvantages and benefits, the court must have regard to both: Henry v Henry , above at [51]-[53]; Winter v Winter , above, at [29].

85. The detriment alleged must be pleaded and proved by the claimant: Gillett v Holt , above, at 232D-F; Stevens & Cutting v Anderson , above, at 99.

86. The leading case on fulfilment of the equity is Guest v Guest , above. There, at [94], Lord Briggs said: "The aim [of the remedy] remains what it has always been, namely the prevention or undoing of unconscionable conduct. In many cases, once the equity is established, then the fulfilment of the promise is likely to be the starting point, although considerations of practicality, justice between the parties and fairness to third parties may call for a reduced or different award. And justice between the parties may be affected if the proposed remedy is out of all proportion to the reliant detriment, if that can easily be identified without recourse to minute mathematical calculation, and proper regard is had to non-monetary harm." Rajah J in Spencer v Spencer , above, helpfully summarised the approach which the court should take, following Guest , to this issue: “[32] The Court's approach should be as follows. First, the Court must decide whether the repudiation of the promise is unconscionable. Usually it will be, but there may be special circumstances meaning it is not; Guest [74]. Secondly, if it is unconscionable, the starting point is to start with the assumption that the simplest way to remedy the unconscionability is to hold the promisor to the promise; Guest [75]. [33] If the promisor asserts and proves (the burden being on him for this purpose) that specific enforcement of the full promise would be out of all proportion to the cost of the detriment to the promisee, then the court may be constrained to limit the extent of the remedy; Guest [76]. However, where the reliant detriment has had lifelong consequences, a detriment valuation will generally fall upon stony ground. It is where the detriment is specific and short-lived, and in particular, shorter than the parties are likely to have contemplated, that it is likely to serve a useful purpose; Guest [72]. The question of proportionality is not to be carried out on the basis of a purely financial comparison ( Guest [73]): ‘Take the example where the daughter spends the whole of her working life on the family farm, working at low wages, in the promised expectation that she will inherit it. The question whether giving her the farm is disproportionate is not to be answered in such a case simply by comparing the monetary value of the farm with the net present value of the wages differential. Modern capital values of farmland are typically so high that the farm would always be worth much more than any valuation of the detriment. But that does not make a full in specie enforcement of the expected inheritance disproportionate. It will be proportionate (or at least not out of all proportion) because the daughter has fulfilled her part of the family understanding, and it is only fair and proportionate that the parents should now perform theirs.’”

87. Ms Haynes’ pleaded case on proprietary estoppel (which was pleaded by Counsel, but not by Ms Jones) relies on various representations said to have been made by Mr Austin (including the conversation in the garden of the Property), but Ms Jones’ submissions correctly concentrated on the discussions which Ms Haynes had with Dr Wanger in 2014, since he represented HIA as owner of the Property and was trustee of the Greancoat Trust which was the beneficiary of the Anstalt . Ms Jones submitted that the representations made by Dr Wanger were reinforced by the letters sent by Dr Schwaerzler in 2016.

88. In my judgment, the representations made by Dr Wanger in 2014 fall short of the promise of an interest in the Property which is required for a proprietary estoppel. On the one hand, they were undoubtedly intended to be relied on by Ms Haynes: Mr Austin and Dr Wanger took her through an elaborate performance in getting her out to Liechtenstein and allowing her to see Mr Austin’s Letter of Wishes being formally notarized and her own Letter of Wishes notarized and apostilled . It can hardly be said to have been unreasonable for her, in the circumstances, to have relied on what was then said and done. But what she was told on that occasion was not that the Letters of Wishes conferred, or would confer, an interest in the Property on her. It was that Dr Wanger had a genuine intention to administer a discretionary trust on the basis set out in the Letters of Wishes and she could trust him to do so. Objectively, a reasonable person would have understood from Mr Austin’s Letter of Wishes that it was revocable and, that, if circumstances changed, Dr Wanger might depart from what was there set out. A reasonable person would also have understood that the instructions set out in Ms Haynes’ Letter of Wishes were conditional on her becoming a beneficiary of the trust in the future. Applying the test in Lloyd v Sutcliffe , I do not consider that Dr Wanger made clear that he was giving a promise that would not be revoked, particularly if her relationship with Mr Austin subsequently foundered.

89. Equally, when it comes to Dr Schwaerzler’s letters in 2016, as I have set out above, he was careful to caveat the assurances given to Ms Haynes by referring to his discretionary powers. Both Dr Wanger and Dr Schwaerzler were, on the instructions of Mr Austin, tip-toeing up to the line with Ms Haynes to give her comfort, but without crossing it into making a firm commitment. There may be many people who would consider this a cruelty to Ms Haynes, but that is insufficient to give her legal rights by way of an estoppel.

90. The evidence of detriment is also very thin. Ms Haynes relies on various payments made to builders and on items for the Property, but there is nothing to link those payments to the representations made in 2014. I accept Ms Jones’ submission that the fact that Ms Haynes’ money derived from Mr Austin is not an answer to the claim that she suffered detriment in choosing to spend it on the Property. But in so far as she met Property-related expenses there was no apparent change as a consequence of the events in 2014 and in any event I do not consider that these expenses could be considered substantial. As to the contention that Ms Haynes failed to take steps to secure her position in reliance on the representations made, whilst it seems highly plausible that that was the case, particularly given that the Letters of Wishes appear to have been driven by her desire to have the security of marriage, this was not part of Ms Haynes’ pleaded case, nor addressed in her witness statement. In the circumstances, HIA did not need to cross-examine her on the point.

91. Consequently, in my judgment Ms Haynes has failed to establish her case on proprietary estoppel. Whether Mr Austin has a chargeable interest in the Property

92. I next consider Ms Haynes’ application for an order for sale of the Property pursuant to the First Final Charging Order and/or Second Final Charging Order.

93. By section 2 of the Charging Orders Act 1979 “(1) Subject to subsection (3) below, a charge may be imposed by a charging order only on— (a) any interest held by the debtor beneficially— (i) in any asset of a kind mentioned in sub section (2 ) below, or (ii) under any trust.. (2) The assets referred to in subsection (1) above are— (a) land…”

94. I accept that the fact that a view must be taken when imposing a charging order as to whether a debtor holds an interest beneficially does not prevent a more thorough examination of the position when an order for sale is sought. In Charging Orders on Land, Law Practice and Precedents 2 nd edn by Falcon Chambers, it is said at paragraph 6.28: “Before making an order for sale, the court must be satisfied as to the nature of the debtor’s title to the charged property. Evidence as to the nature of the debtor’s title will already have been adduced at the stages of applying for and obtaining an interim and final charging order. However, evidence which sufficed at those stages may not be sufficient at the stage of enforcement. At those earlier stages, if there had been doubt as to the nature of the debtor’s title, a charge may nonetheless have been granted, as it could only ever have attached to such interest as the debtor did in fact have in the property. If it transpired that he had none, then no charge would in fact have been imposed. However, at the stage of enforcing the charging order, the court must be satisfied that the debtor in fact has an interest in the property to be sold, and as to the nature of that interest.” See also The Law Society v Dua [2020] EWHC 3528 at [55]-[56].

95. In this case, the First Final Charging Order and Second Final Charging Order were made over Mr Austin’s interest “if any” in the Property. It is therefore open to me to find that Mr Austin then had no beneficial interest in the Property (or, to put it another way, that the extent of his beneficial interest was nil). HIA was refused permission to appeal to the Court of Appeal from the First Final Charging Order on the basis that the extent of Mr Austin’s interest could be determined if and when an application was made for an order for sale, when the issue could be considered with such evidence as the parties deploy.

96. Ms Jones has fairly accepted that if Mr Austin’s interest in the Property at the time the charging orders were made was only as a member of a class of beneficiaries under a discretionary trust, that would be insufficient and an order for sale could not be made. A fortiori if the Property itself was not trust property, but the trustee was a beneficiary of the Anstalt or held founder’s rights as a trust asset. In fact at the time the charging orders were made the property of the Bonfor Trust (Bahamas) did not even include the founder’s rights in HIA which, though purportedly assigned to it, did not exist.

97. The contention that Mr Austin has a chargeable beneficial interest in the Property therefore rests on the contention that he is a beneficiary under the same common intention constructive trust on which Ms Haynes relies, arising out of the 2014 Letters of Wishes and associated events. I have found that no such constructive trust arises. In addition, there is no evidence of any detrimental reliance by Mr Austin on the claimed common intention.

98. Therefore, Mr Austin does not have a chargeable interest in the Property and the claim for an order for sale does not succeed. Paragraph 4(ix) of the Consent Order

99. In light of my findings above, the question whether HIA may rely on paragraph 4(ix) of the Consent Order does not arise. The Property is not in the name of Mr Austin nor does he have any beneficial interest in it and the claims which Ms Haynes has made do not fall within the scope of that paragraph. HIA’s claim to possession

100. HIA contends that Ms Haynes’ right to occupy the Property was governed by the Occupancy Agreement and, on expiry of the 60-day notice period given by the Termination Notice, she and the children became trespassers and consequently it is entitled to an order for possession and damages for trespass.

101. Ms Haynes defends the possession claim on the basis that, pursuant to paragraph 4(i) of the Consent Order, she and the children are entitled to remain at the Property until a new home is provided in accordance with the terms of the Consent Order and the subsequent order dated 31 January 2019. HIA was not a party to the Children Act Proceedings at the time of the Consent Order, but Ms Haynes contends that paragraph 4(i) is binding on HIA by virtue of the letter dated 12 February 2018, by which HIA conferred actual authority on Mr Austin to “ take all necessary actions in order to take possession of the mentioned property ”, including “ all actions to access and occupy the property as well as to stay there or to define the people who are allowed to occupy the property .”

102. In response, HIA relies on the fact that it was not a party to the agreement embodied in the Consent Order and, by its Amended Reply and Defence to Counterclaim, denies “ that the Consent Order and/or the letter dated 12 February 2018 was capable of providing any authority for Mark Austin to bind the Claimant as a matter of Liechtenstein law, being the applicable law ”.

103. This pleading by HIA begs the question as to what legal issues Liechtenstein law is said to be applicable: for example, one legal issue might be the extent of the authority conferred on Mr Austin by the letter; another might be whether HIA has capacity to permit Ms Haynes to occupy the Property; a third might be whether HIA can act through an agent.

104. Ms Jones argues in written submissions that the Occupancy Agreement and any variation of it (including the Consent Order) are connected to property in England and therefore governed by English law, under the principle that rights over or in relation to an immovable are generally governed by the law of the country where the immovable is situate: Dicey, Morris and Collins, The Conflict of Laws 16 th edn Rule 140; Kireeva v Bedzhamov [2024] UKSC 39 , [2024] 3 WLR 1010 at [42]. Mr Clarke and Mr Chai’s written submissions treat Lichtenstein law as the only applicable law, although they direct my attention to Chapter 12 of Bowstead & Reynolds on Agency, 23 rd edition, which addresses the question of the law governing questions relating to agency.

105. Chapter 12 of Bowstead & Reynolds, and the discussion of Rule 223 in Dicey, Morris and Collins, above, indicate (a) that more than one system of law may be relevant when considering agency; (b) that there is little authority, and a number of unresolved questions, in this area and (c) that it is important to distinguish between three distinct relationships: that between principal and agent; that between principal and third party and that between agent and third party. Bowstead & Reynolds refer to the relationship between principal and agent as the “internal” aspect of agency and the relationship between principal and third party as the “external” aspect.

106. I am concerned here with the question whether there is a binding agreement between HIA and Ms Haynes embodied in paragraph 4(i) of the Consent Order: I am therefore concerned with the relationship between a putative principal and a third party, both at the time the letter was written (February 2018) and at the time when the agreement underlying the Consent Order was made (December 2018).

107. Dicey, Morris and Collins’ Rule 223 provides: “(1) The issue whether the agent is able to bind the principal to a contract with a third party, or a term of that contract, is governed by the law which would govern that contract, or term, if the agent’s authority were established. (2) The existence and scope of the agent’s actual authority to represent the principal, where relevant under the law which applies by virtue of clause (1) of this Rule, are to be determined having regard to the law applicable to the relationship between principal and agent. (3) If the agent is able to bind the principal in accordance with clauses (1) and (2) of this Rule, the law applicable to the contract between the principal and the third party will be determined under the Rome I Regulation.” The Rome I Regulation referred to in clause (3) of the Rule is Regulation (EC) No 593/2008 on the law applicable to contractual obligations (“ Rome I ”). Although Article 1(2)(g) of Rome I excludes from the scope of the regulation “ the question whether an agent is able to bind a principal…in relation to a third party ”, the application of the common law rules, as encapsulated in Rule 223, may make Rome I indirectly relevant.

108. It is common ground that the Consent Order is governed by English law. Thus, English law governs the issue whether Mr Austin was able to bind HIA to the terms of the Consent Order, pursuant to clause (1) of the Rule.

109. When considering, as a matter of English law, whether Mr Austin was able to bind HIA to the terms of the Consent Order, it is necessary to consider the principle that a person cannot do through an agent what he, she or it could not do personally: Bowstead & Reynolds, above, at 2-006 and 2-007. In this context, a corporation which lacks capacity to enter into a particular contract cannot conclude a valid transaction of that nature: the transaction is void. A foreign corporation’s capacity, that is to say, its legal ability to enter into a particular contract, may be limited by the terms of its constitution, or by the law of the country governing the transaction: Dicey, Morris & Collins, above, Rule 187(1). Further, all matters concerning the constitution of a corporation are governed by the law of the place of incorporation: Dicey, Rule 187(2) and Haugesund Kommune v Depfa ACS Bank [2010] EWCA Civ 579 , [2012] QB 549 at [27]-[49] and [155]-[160]. It is therefore relevant to consider whether HIA had capacity under Liechtenstein law at the relevant time to permit Ms Haynes to occupy the Property, pending provision of a new home.

110. This question is not directly considered in either party’s submissions and Dr Frommelt’s responses to questions are concerned with a different issue, namely whether HIA had power to appoint an agent. HIA argues that Mr Austin did not have authority to permit Ms Haynes to occupy the Property because: i) Dr Frommelt says: “…the authorised representative must comply with the provisions of bylaws that determine who can be a beneficiary at all and to what extent. The actions of the authorised representative at that time must therefore have been in accordance with the statutes and bylaws of HIA and the trust deed of the GREANCOAT TRUST of 15 September 2010 in particular when defining the people who are allowed to occupy the property”; ii) The Greancoat trustee’s powers in relation to occupation of the Property were confined to “ the beneficiaries or any of them ” by clause 7(f) of the Greancoat trust deed, consequently, since Ms Haynes was not a beneficiary, the “ trustees of the beneficiary of HIA had no power to delegate in the manner asserted by [Ms Haynes]”; and therefore iii) in the circumstances, the rights purportedly granted pursuant to the Consent Order were not ones which Mr Austin had power to grant, since they were powers which the trustee did not have.

111. In my judgment, this argument confuses the two distinct layers in the trust structure, HIA and the Greancoat Trust. The registered proprietor of the Property is HIA. It is a separate legal person which owns the Property legally and beneficially: it does not hold it on trust for anyone. The “beneficiary” of HIA, that is to say the person in whose interest the Anstalt is to be administered and who will receive distributions from it, including any surplus on liquidation of the Anstalt , was at the relevant time the trustee of the Greancoat Trust (since a trust is not, in Liechtenstein law, any more than English law, a legal person). It is HIA, as owner of the Property, which is claimed to have been bound into the Consent Order by Mr Austin, not the trustee. It is irrelevant whether clause 7 of the Greancoat Trust trust deed limited the trustee’s powers as HIA submits (which submission is not supported by evidence from Dr Frommelt and is not the natural reading of the trust deed). This is because (a) the capacity of the trustee is not in issue; and (b) clause 7(f) relates to occupation of the trust property, and the Property was not property of the Greancoat Trust. It is fair to say that some paragraphs of Dr Frommelt’s evidence (including the paragraph set out above) tend to run together HIA and the Greancoat Trust but the distinction between the two appears clearly from his evidence, taken as a whole and indeed is particularly relied upon by HIA in its Defence and Counterclaim in the Sale Proceedings.

112. In my judgment there is no basis in the evidence from which it may be concluded that HIA lacked capacity to allow Ms Haynes and the children to occupy the Property pending purchase of a new home. The purposes for which it had been formed, as recorded in the 26 April 2013 Articles of Association, were: “Investment and administration of assets of all kinds, including the acquisition and administration of property, holding of participations or other rights, as well as all business in connection with the foregoing, however, engaging in commercially conducted activities shall be excluded.” Allowing people to live in the Property is part of the “ administration of property ” and part of the “ business in connection with ” investment and administration of HIA’s assets. It is therefore firmly within HIA’s purposes. Indeed, HIA’s whole raison d’être was to acquire and maintain the Property as a family home for Ms Haynes, Mr Austin (when he was in the UK) and their prospective children: it was the very reason for which it was brought into existence. Moreover, as Ms Jones submits, HIA had entered into, and relies upon for its possession claim, the Occupancy Agreement with Ms Haynes and there is no suggestion that that was void for lack of capacity.

113. Thus HIA had capacity under Liechtenstein law to enter into an agreement with Ms Haynes in the form of paragraph 4(i) of the Consent Order. There is nothing in English law which would limit that capacity.

114. Consequently, applying English law, under Dicey, Morris and Collins’s Rule 223(1), I conclude that Mr Austin was able to bind HIA into a contract with a third party.

115. I now turn to Rule 223(2), which concerns the existence and scope of Mr Austin’s actual authority to represent HIA. This is to be determined “ having regard to ” the law applicable to the relationship between HIA and Mr Austin. As to this, Dicey, Morris & Collins say at 32-326: “…the proposition that questions concerning the agent’s actual authority should be determined “having regard to” this law should be seen as complementing, and not as an exception to, the general principle in clause (1) of this Rule that A’s ability to bind P to a contract concluded with T is governed by the law which would apply to that contract if A’s authority were established. The law applicable to the relationship between P and A provides an important data point, in particular in interpreting P’s conduct in conferring authority upon A and any instrument by which that conferral of authority took place. Ultimately, however, it is for the law applicable the law applicable to the (putative) contract concluded by A with T to determine the significance of the P’s act of conferring authority upon A, the meaning and effect of “actual authority” and whether this concept is controlled or restricted in any way, including (for example) by requirements of form. The consequences of A’s lack of actual authority to conclude a particular contract with T on P’s behalf also remain a matter for the law applicable under clause (1) of this Rule. ” See also Bowstead & Reynolds, above, at 12-015, 12-016. It is therefore necessary for me to consider which law governs the agency relationship between HIA and Mr Austin. Ms Jones does not address this question, and Mr Clarke and Mr Chai appear to assume that it must be Liechtenstein law.

116. Many agency relationships will involve a contract, making Rome I applicable to determine the governing law. The letter of 12 February 2018 was not a contract, rather it was a unilateral conferral of authority by HIA on Mr Austin. However, both Dicey, Morris & Collins at 32-296 and Bowstead & Reynolds at 12-004 are of the view that a unilateral mandate of this nature should be treated as a contract for the purposes of the application of Rome I.

117. In determining the law governing the relationship between HIA and Mr Austin, the starting position is that under Article 3.1 of Rome I, a contract is governed by the law chosen by the parties. In this case, HIA and Mr Austin did not choose a system of law to apply to their agency relationship. Article 4 then sets out various rules for determining the law governing the contract: “1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows:… (b) a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence; (c) a contract relating to a right in rem in immovable property or to a tenancy of immovable property shall be governed by the law of the country where the property is situated;…

2. Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the country has his habitual residence.

3. Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply.

4. Where the law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract shall be governed by the law of the country with which it is most closely connected.”

118. Whilst the agency relationship between HIA and Mr Austin relates to the Property, it would not seem to be captured by Art 4.1(c), which is concerned with proprietary rights in immovable property and tenancies rather than simple occupation under licence. The letter could potentially be considered a “contract for the provision of services” within Article 4.1(b). If that were the case, the relevant law would be Swiss law, Switzerland being Mr Austin’s habitual residence. However, in that event, in my judgment Article 4.3 would apply. The agency relationship between HIA and Mr Austin was manifestly more closely connected with England than with Switzerland: indeed, it had nothing at all to do with Switzerland. It provided authority to Mr Austin “ in all matters concerning ” a property in England, including taking “ all necessary actions to take possession of that property ”, which would have involved the commencement of legal proceedings in England; it related to the occupation of that property in England. For the same reasons, if none of the specific provisions in Art. 4.1 applies, Art 4.4 makes English law applicable. Therefore, whichever route one takes, the conclusion is that English law governs the existence and scope of Mr Austin’s agency.

119. Under English law, the letter was sufficient to confer authority on Mr Austin and in my judgment was in sufficiently wide terms that entry into paragraph 4(i) of the Consent Order fell within its scope. That paragraph “ defined the people who are allowed to occupy the property ”, within the meaning of the letter. Indeed, this is not seriously disputed.

120. I have therefore concluded that Mr Austin was authorised to enter into the agreement underlying paragraph 4(i) of the Consent Order on behalf of HIA and that that paragraph is binding on it.

121. As I have said above, it is common ground that the Consent Order is governed by English law, which addresses the issue in Dicey, Morris & Collins’ Rule 223(3).

122. For these reasons, I agree with Ms Jones that HIA is not entitled to possession of the Property and that, upon purported expiry of the Termination Notice, she and the children were not trespassers in the Property. They remain entitled to occupy the Property until a new home is provided in accordance with the terms of the Consent Order. Disposal

123. For the above reasons: i) I dismiss HIA’s claim for possession and for damages for trespass and/or unlawful use and occupation. I will make a declaration that Ms Haynes and the children are entitled to remain at the Property until completion of the purchase of a new home in accordance with the Consent Order and subsequent order dated 31 January 2019; ii) I dismiss Ms Haynes’ counterclaim in the Possession Proceedings; iii) I dismiss Ms Haynes’ claim for an order for sale of the Property. In the event that consequential orders are not agreed, I will receive further submissions from Counsel as to whether I should order the relief sought in HIA’s Counterclaim to the Sale Proceedings.