The CA has re-emphasised existing principles to establish the existence of a constructive trust and deal with disputes concerning beneficial ownership of property.

A recent case has a very complicated factual background originating in the collapse of the BCCI. The CA held that the trial judge was correct to conclude that a common intention constructive trust had been created with H and W owning a property in equal shares. This was despite the innocent misrepresentation made by H which led to the couple entering into an agreement surrendering W’s sole beneficial interest.

But this was not a misrepresentation that would have led to rescission, as the Court could not, in the particular circumstances, restore the parties to their former positions.

In determining the necessary common intention to give rise to a constructive trust, the court had to consider the result that the parties must have intended to achieve – and not simply allow itself to be swayed by what it considered to be fair.

Practitioners must give careful consideration to taking clear documentary evidence in support of how the beneficial interest in property is to be held. Hameed v Qayyum [2009] EWCA Civ 352 in [2009] 89 FLJ 9.