A comment on Rogers v Wills [2025] EWHC 1367 (Ch): intention to create legal relations and free acceptance in unjust enrichment

Ben Haseldine appeared for the successful claimant in the High Court following a trial where it was argued that there was a contract between a mother and daughter whereby the latter would be paid for the care she provided in the years prior to her mother’s death.

The judgment represents a very rare example of where the court has found that there was an intention to create legal relations in a domestic context. It also provides important guidance relating to mental capacity, which was of particular relevance in this claim given the claimant’s mother’s diagnosis with dementia.

The claim was also successfully advanced on the basis of unjust enrichment it being found that the late mother’s estate had been enriched at the daughter’s expense because of the care she had provided. By his judgment, HHJ Matthews has given a fulsome defence of ‘free acceptance’ as a recognised unjust factor. This aspect of the judgment is likely to be of interest to academics and practitioners alike as the latest foray into this complex and disputed argument.

The judgment can be found at

https://www.bailii.org/ew/cases/EWHC/Ch/2025/1367.html.

The facts

The claimant – a retired nurse – is one of six surviving children of Sheila and John Wills.

The defendant is the claimant’s brother, and was the executor of Sheila’s estate.

John Wills died in 2012 and Sheila continued to live independently in Norfolk until September 2017 shortly after her 90th birthday.

On 10 September 2017, Shelia was found by her neighbours wandering on the road in a confused state asking after her deceased husband. The claimant and her siblings arranged for Sheila to stay with the claimant and her husband in Bristol.

Initially this was intended only to be a temporary arrangement, and in mid-October 2017 the claimant and Sheila travelled back to Norfolk with the intention being that live-in carers would be arranged to support Sheila.

However, shortly after arriving back home, ‘Sheila told the claimant that she did not want to stay [in Norfolk] with live-in carers, and asked whether she could come back with her and stay in Bristol.’ The claimant agreed to take Sheila back to Bristol. Before they left, ‘Sheila insisted to the claimant that her return to Bristol would be on terms that she “wanted to pay her way”, and the claimant would be “paid properly” for looking after her.’ The claimant agreed that she would be, but there was no discussion as to the amount that would be paid: ‘That was left over for the future’.

It was also around this time that the siblings started the process of preparing Lasting Powers of Attorney in respect of Sheila.

Accordingly, from October 2017 until her death in April 2020, Sheila lived with the claimant and her husband in Bristol. During this time, Sheila’s health deteriorated and she was diagnosed with (among other things) vascular dementia, skin cancer, and various issues which required intimate care. By reason of these health issues, Sheila became increasingly dependent on the claimant for her day-to-day care.

Throughout this time, the claimant and her siblings were in regular contact with one another, with a repeated comment being made by the siblings that the claimant should not be out of pocket by reason of her caring for Sheila. However, the claimant did not seek or take payment from Sheila during this time.

Sheila died on 19 April 2020.

Between 21 April 2020 and 21 May 2020, the claimant transferred £100,000 to herself from Sheila’s bank accounts.

When the defendant (in his role as executor of Sheila’s estate) challenged these withdrawals, the claimant explained that these represented the costs of her providing care to Sheila.

There then followed a complete and collapse in the relationship between the claimant and her siblings. The claimant was reported to Lloyd’s Bank and accused of fraud with the withdrawn monies being reclaimed. The claimant was then prosecuted for theft and stood trial at Bristol Crown Court, the conclusion of which being that the claimant was found not guilty.

Capacity

The first issue which HHJ Matthews considered related to Sheila’s capacity to undertake an act having legal significance.

The case provides a useful reminder that ‘the question of capacity is not a one-size-fits-all question, with a single standard for everyone and every decision.’ It is also to be recalled that 'capacity may fluctuate from day to day, and sometimes even during a day.’ It is for the party who asserts that a person lacks capacity to prove that, and that person will be presumed to have capacity until the contrary is established.

HHJ Matthews also gave specific guidance in respect of how to assess capacity when a person has given a lasting power of attorney. It was stated that:

no conclusion can be drawn about the capacity of a person to make decisions, merely because that person has given a lasting power of attorney. On the contrary, if the power is to be valid, the donor must have capacity at that date. Whether a person retains capacity thereafter is a question to be decided on the relevant evidence. The existence of the power by itself takes the matter no further. It is not even evidence of, let alone proves, a lack of capacity.

It was found that Sheila had capacity to enter into a contract with the claimant. In reaching this conclusion, the Judge noted that Sheila had made a professionally drawn will in December 2015; had executed powers of attorney in 2017 and 2018; had discussed her health issues with medical professionals; and had made decisions about buying goods and services that she wanted. It was expressly held that Sheila’s diagnosis with dementia ‘does not automatically mean that she thereafter ceased to have capacity, or that she did not have capacity earlier than that’. Considering all the circumstances, HHJ Matthews stated that he was ‘very far from satisfied that in October 2017 Sheila had lost capacity’: accordingly, he proceeded on the basis that she still possessed capacity.

The contract claim

There were two central issues to be considered in the contract claim.

First, did Sheila and the claimant have the requisite intention to create legal relations and so enter into a contract.

Second, what was agreed in respect of payment to the claimant for her provision of care to Sheila.

Intention to create legal relations between mother and daughter

HHJ Matthews has provided clarification in respect of when the court will accept that there was an intention to enter into a contract between family members.

It may have been thought that there was a presumption in domestic cases (e.g. as between a parent and child, or between spouses) that there is no intention to create legal relations. Indeed, HHJ Matthews commented that the prevailing view may even have been that ‘where an arrangement is entered into between members of a family, even close members, then as a matter of fact there is no intention to create legal relations.’ Certainly, it is fair to say that it is rare for the court to recognise such an intention in such cases.

However, HHJ Matthews was emphatic in stating that such an understanding of the case law is wrong. ‘It is always a question on the evidence available (and the relationship is only one element in this) as to whether there is an intention to create legal relations.’

It was held that ‘on the evidence Sheila plainly intended to create a legal relationship with the claimant’. It was of relevance to the Judge that ‘Sheila was a lady who knew she had sufficient resources, who did not want charity, and wanted to be looked after properly’. It was noted that Sheila had ‘insisted, not only to the claimant but also to the claimant’s husband and her children, that the claimant had to be paid “properly” for looking after her, notwithstanding that the claimant was her daughter.’

HHJ Matthews stated that:

[i]f a third party had undertaken to look after her in its care home, or carers had been employed to come into her own home and look after her there, there would have been little or no question of a lack of intention to create legal relations. I see no sufficient reason not to take the same view if the arrangement was with the claimant rather than a third party.

In support of this comment, it was noted that:

[t]his was not a short-term family or social treat by one family member to another. It was an important long-term living arrangement, involving hard work and unsocial hours, and impacting considerably on the contractor’s existing lifestyle, including preventing her from earning money in other ways.

In the alternative, even if it had been the case that Sheila privately did not intend to enter into a contract with the claimant, HHJ Matthews commented that ‘the matter is nevertheless to be judged objectively, on the basis of what the words and conduct of Sheila would have conveyed to a reasonable person in the claimant’s position’. On this basis, it was held that ‘[a]nalytically, Sheila would have been estopped from denying that such was her intention’.

The contractual price for the claimant’s provision of care

HHJ Matthews accepted that, as a matter of law, ‘it is possible to contract to sell land, a good or a service for a price which is in fact unascertained at the time, so long as that price can actually be ascertained when needed’.

He went on to comment that ‘[d]espite the apparent vagueness, a contract for a “reasonable” price is a perfectly good contract’, and that ‘[e]ven where no formula for remuneration (such as a “reasonable” charge or price) is stated, if it is clear that there was to be such remuneration, it will be implied as a reasonable price or charge.’

The Judge found that ‘all the elements of a contract for Sheila to be cared for were present.’

In respect of the contract price, HHJ Matthews concluded as follows:

If – as I have held – Sheila did request the claimant to have her live with the claimant and for the claimant to look after her, and the claimant agreed to do so, then this was not a unilateral contract. On the facts, assuming that Sheila had capacity to make a contract and intended to do so, Sheila agreed to pay for care and the claimant agreed to provide it. So, the [Supply of Goods and Services Act 1982] can and does apply. Sheila’s obligation in that case was to pay a reasonable sum for her care.

This trial had been run as a split trial with this judgment dealing with liability only. Accordingly, HHJ Matthews expressly did not comment on the amount to be paid by the Estate in respect of the reasonable price for the claimant’s services.

The unjust enrichment claim

The three elements of a claim in the law of unjust enrichment are well established: (1) the claimant must prove that the defendant has been enriched; (2) that the enrichment was at the claimant’s expense; and (3) that the enrichment at the claimant’s expense was unjust (i.e. that there is an “unjust factor”).

There was no real dispute between the parties as to the first two elements with HHJ Matthews finding that ‘Sheila’s presence in the claimant’s home resulted in significant changes to the claimant’s and her husband’s routine’. This included no longer being able to look after grandchildren (for which the claimant had previously been paid) and making adjustments to their home. It was also noted that Sheila could not be left alone in the claimant’s house. The provision of the services by the claimant to Sheila was sufficient to demonstrate that the latter had been enriched at the expense of the claimant.

The core of the dispute arose in answering the question of whether the enrichment was unjust. The submissions made were in respect of two such purported unjust factors: ‘failure of basis’ and ‘free acceptance’.

It is likely that this judgment will be most notable for how HHJ Matthews deals with the concept of ‘free acceptance’, with the key conclusions being as follows:

1. HHJ Matthews rejected the defendant’s submission that free acceptance is not an independent or fully recognised unjust factor in English law. On the contrary, HHJ Matthews stated ‘free acceptance does have a role to play as an unjust factor in the currently accepted English law unjust enrichment model’. Indeed, he went on and summarised the law as follows: ‘a reasonable person who benefits from services rendered who should have known that the services were expected to be paid for but, having a reasonable opportunity to do so, did not reject them cannot deny having been unjustly enriched.’

 

2. HHJ Matthews sought to distinguish between free acceptance and failure of basis as recognised unjust factors by identifying the different causes of the ‘unjustness’ in each case. In cases of free acceptance, ‘[t]he unjustness lies in the recipient not preventing the needless conferring of the benefit when that recipient realised it was happening, and that it was not free.’ By contrast, in cases of failure of basis, ‘the benefit was conferred on an agreed condition which has been falsified. It is unjust not to return the benefit or pay its value.’

 

3. HHJ Matthews cast doubt on the recent decision of H&P Advisory Ltd v Barrick Gold (Holdings) Ltd [2025] EWHC 562 (Ch) in which Simon Gleeson (sitting as a deputy judge of the High Court) dismissed free acceptance as a free-standing unjust factor. HHJ Matthews doubted that that conclusion was correct: ‘He says (at [228]) that free acceptance requires that mere receipt of a benefit creates a restitutionary liability unless there is a positive act of rejection by the recipient in advance of or during the receipt. But in my respectful opinion it does not. It creates such a liability if, and only if, (i) the recipient knew or should have known that the claimant who supplied the benefits expected to be paid for them, and yet (ii) did not take a reasonable opportunity open to him or her to reject those benefits. Mere receipt plus no rejection is simply not enough.’

 

4. HHJ Matthews commented directly on the (dissenting) judgment of Lord Burrows in Barton v Morris [2023] UKSC 3. In that judgment, Lord Burrows espoused the view that free acceptance is not an unjust factor at all but is better explained as an aspect of failure of basis. Lord Burrows further was troubled by the allocation and acceptance of risk in cases of free acceptance. HHJ Matthews challenged this view, arguing ‘there is surely a difference between the claimant who by mistake undertakes a job for the wrong person, and the claimant who was never engaged to do the job by anyone, and just hopes to be paid. […] even if the claimant takes some risk, it does not follow that he takes the risk that, once the defendant becomes aware of the work being done and has a real opportunity to object, the defendant will keep quiet and say nothing, so that the claimant goes on and completes the work.’

In light of the above, HHJ Matthews held that the claimant had made out her claim in unjust enrichment: the circumstances were such that the claimant had conferred substantial benefits on Sheila where Sheila accepted those benefits, having the opportunity to decline them, and knowing they were expected to be paid for. In reaching this conclusion, HHJ Matthews expressly based his decision on free acceptance as being the unjust factor.

Ben Haseldine was instructed by Jordan Lock and Stephanie Kleyman at Kleyman & Co.