Cathryn Joan Galpin v David Pilbeam

Key words: Registered charge – discharge of charge upon repayment – interest – waiver or cancellation of interest Introduction: the Applicant and her mother (Margaret Thirkill)

1. The Applicant, Cathryn (or Kate) Galpin, is the sole registered proprietor of the leasehold title above, to what is a ground floor flat at that address. The detailed background to her acquisition of that property, and the various titles comprised within the building at that address, was not before me; consistently with the generally poor disclosure and presentation in this case.

2. From what I understand from fragments of her evidence, and other documents, it appears that she may have purchased the freehold to the whole building in 2008, then granted (as landlord) a 99 year lease of the ground floor as a flat, on 22 nd December 2008 to one Nigel Clark. Very shortly after that, however, she was herself registered as the proprietor of the new leasehold title thus created. No copies of freehold or leasehold registered titles to the upper floors, or the property at number 1296 (said by the Applicant to be physically connected to the ground floor flat at 1294), were produced in evidence. There was some evidence, again not supported by any further documentation, that an “investor”, Mr. Harry Brayne, had funded then later “repossessed” the upper floors of 1294.

3. In any event, these proceedings concern only the above leasehold title to the ground floor flat, and specifically a registered charge entered on that title. That charge was registered on 21 st May 2012, in favour of Margaret Joy Thirkill. She is the Applicant’s mother. Lisa Pilbeam, the Applicant’s sister and the husband of the Respondent David Pilbeam, is Mrs. Thirkill’s other daughter. Mrs. Thirkill (b. 11/4/1930) is now nearly 96 years old. She was diagnosed with dementia in October 2020.

4. The Applicant is Mrs. Thirkill’s attorney, under a lasting power of attorney granted on or about 10 th December 2020, whose grant was certified by a GP on that date (i.e. he certified that Mrs. Thirkill as donor understood the purpose of the power, and no fraud or undue pressure had been applied to her). That power remains in force and valid. It was registered with the Office of the Public Guardian with effect from 23 rd February 2021.

5. Mrs. Thirkill has lived in the ground floor flat at number 1294 since 2010. That was still the position at the date of the Statements of Case and other evidence, although it appears (again, specific details were not provided) that she may now reside in a care facility, at least some of the time.

6. It is the Applicant’s case, and agreed, that in 2008, Mrs. Thirkill made a loan to the Applicant of £80,000. It was also agreed (although again, there was no documentary evidence of these matters) that she raised this money by way of an “equity release” loan on the property she then owned and lived in, in Winchester. The purpose of that loan appears to have been to contribute towards the investment and development projects of the Applicant and her husband, including those at numbers 1294 and 1296.

7. It was also agreed, by the time of the hearing, that Mrs. Thirkill moved in to the ground floor flat in 2010 just prior to the sale of her own property in Winchester; from which sale the equity release loan and accrued interest was then repaid. At this time, the Applicant and her family were living in the adjoining flat, which (as I understand the Applicant’s evidence) had been expanded into a maisonette for all of her family and numbered (or renumbered) as 1296. The Applicant’s evidence was that her mother was fairly independent for the first few years there, although after she suffered a stroke in 2013 she required more care and supervision from the Applicant. The 2012 charge

8. On 16 th May 2012, the Applicant executed a legal charge in favour of Mrs. Thirkill. That is the charge currently registered on the title. Neither party had troubled to provide a copy of this, until I had to specifically ask for one on the eve of the hearing.

9. It is clearly a professionally drafted document. The Applicant’s evidence was that she wanted to put her mother’s loan to her on a (literally) more secure footing, following what she described as “repercussions from the banking crash”. Her further evidence, expanded upon orally, was that she arranged a visit to a firm of solicitors in Bournemouth (I infer, only from a stamp on the copy provided to me, the firm of Matthew & Matthew). When I asked her who was the solicitor’s client, she said that different solicitors from that firm acted for her and her mother in this matter.

10. The charge defines “the Principal” as the sum of £80,000. It also makes extensive and detailed provision for the charging, payment, accrual and compounding of “Interest”. In summary, and without setting out the relevant provisions in full:- i) after an initial period of three months, interest became payable on the Principal at the rate of 3% above Bank of England base rate from time to time. It was then payable monthly on the “Interest Payment Days.” ii) if unpaid, it would then be capitalised and added to the Principal, which would then accumulate and bear interest as it accumulated (clause 3.2.2.1). iii) the Applicant as borrower covenanted to pay all principal, interest and costs (clause 3). iv) at clause 9, it was provided that: “The Lender may at any time or times without discharging or diminishing or in any way prejudicing or affecting this security or any right or remedy of the Lender under this mortgage grant to the Borrower, or to any other person, time or indulgence, further credit, loans or advances or enter into any arrangement or variation of rights or, either in whole or in part, release, abstain from perfecting or enforcing or neglect or fail to perfect or enforce any remedies, securities, guarantees or rights which he may now or subsequently have from or against the Borrowed or any other person.” As stated above, the charge was then registered against the leasehold title to the flat, with effect from 21 st May 2012.

11. The Applicant accepts that she never paid any of the interest due to her mother under this charge, and said that no interest was ever demanded. The 2018 document

12. As to such interest, the Applicant relied upon, and put in evidence, a typed and signed document dated 15 th March 2018. Rather than retyping it, I attach a scan of it below.

13. The Applicant’s case was therefore that by this agreement, her mother waived or released any entitlement to past or future interest. In oral evidence, when cross-examined by the Respondent and asked some questions by me, her evidence on this document was as follows:- i) she said that her mother had previously offered to remove the charge completely, and waive all money due under it; in recognition of the Applicant’s financial and family difficulties. ii) the Applicant, however, insisted that the charge should remain. An agreement to waive or release only the interest under it represented a “compromise” of her mother’s more generous offer. iv) the words of the agreement were decided and agreed between them at the time, jointly. She then typed the document up. She accepted that they did not go to any solicitor this time. v) she said that the words reflected an agreement as to, and recognition of, both past and future contributions to her mother’s welfare, through caring for her and providing her with rent free accommodation in the flat. 2019 correspondence, and further payment

14. Some emails from 2019 were disclosed and produced in evidence. The immediate context for these appears to have been a further financial crisis for the Applicant and her husband Mark. Without setting out the details (which, I confess, are difficult to understand from these emails, in the absence of any further documentation), the “investor” Mr. Brayne, who had previously “repossessed” the upper floors and appears also to have had a charge on the property or part of it, had re-emerged and asked for payment. He had previously also successfully petitioned for the Applicant’s bankruptcy in 2013. The prospect was now that Mr. Brayne would accept a sum of money in return for the release of his charge and the return of the additional rooms he had re-possessed.

15. The chain began on 5 th May 2019 when Lisa Pilbeam emailed Mark Galpin saying “Mum tells me that she has lent you more money. Can you let me know the details please.” In emails which were variously expressed to be from “Mark and Kate” or sometimes simply “Kate”, there were then various references to “the £80,000 charge Mum has on 1294 for the agreed loan”, but also now to the prospect of “Mum” or “Maggie” making a further payment of £80,000 towards paying off Mr. Brayne and thus preserving “a roof over our heads”. In the midst of often quite convoluted proposals, there was also reference to a previous sum of £50,000 which Mrs. Thirkill had contributed as a “gift” to the refurbishment of the building. The authors of these emails from “Mark and Kate” or “Kate” never agreed or said that the further payment of £80,000 would be another loan. It was referred to more than once as “help” from her.

16. Lisa and David Pilbeam concluded this sequence of emails on 18 th May 2019 insisting that:- “1. the charge on 1294 covering the first loan remains until the loan is repaid in full to mum – and not offset against any notional claim of rent 2. The latest loan of £80,000 is repaid to Mum commencing with your proposed payment plan in your last email.” That last reference was to a general “future financial plan” which “Kate and Mark” has described (again, in somewhat confusing detail) in a previous email, in relation to all of their financial issues. They had not said or acknowledged that the further £80,000 payment from Mrs. Thirkill would be a “loan”.

17. Nothing further (at least which has been disclosed) followed in the next five months. When Mr. and Mrs. Pilbeam emailed for an update on 24 th October 2019, “Kate, Mark and family” replied that “the Harry Brayne situation became a complicated nightmare and took 6 months to sort out. Not for £100,000 but nearer £160,000 to secure a roof over ours/Mums head. To raise this we have had to borrow in many different ways which will take years to resolve but to secure a roof over Mums/our heads and to part company with Mr. Brayne had to be done.” That reply did not say from whom or where the “many different” loans had come. When Mr. and Mrs. Pilbeam emailed on 29 th October 2019 asking: “Can you let us have the total figure you now owe to Mum” , I was told that no reply was ever forthcoming. Nor, in any of the above emails, was any reference made to the 2018 agreement apparently waiving or releasing all interest on the £80,000 loan secured by the charge. Subsequent events and the application

18. As stated above, not long after the above emails, Mrs. Thirkill was diagnosed with dementia, and the Applicant became her attorney under a lasting power. It appears that, following the agreement reached with Mr. Brayne, the Applicant and her family resumed occupation in number 1296 and/or the upper floors of the building, while Mrs. Thirkill remained living in the flat at 1294.

19. On 15 th January 2024, the Applicant made a payment of exactly £80,000 into Mrs. Thirkill’s main bank account with Nat West. That transaction appears on each of their bank statements from that time.

20. On or about that same date, the Applicant then applied to HM Land Registry on form DS1 for removal of the 2012 charge from the leasehold title of number 1294. I infer this, in the absence of yet further undisclosed documents, because:- i) on 4 th April 2024, the Respondent filed an objection to this application, which he said “has supposedly been submitted by Margaret herself”, who had no capacity to make it. ii) he also said that “This loan has not been repaid, neither a further unsecured loan of £80,000”.

21. The Applicant has not disclosed a copy of the original application as made, so I presume that it was, as the Respondent alleged, purportedly filed in the name of Mrs. Thirkill herself. This presumption is confirmed by a response from HM Land Registry dated 17 th July 2024, referring to correspondence dated 4 th July 2024 (also undisclosed). They said: “It is noted that you are unable to obtain a doctor’s note confirming that at the time of the application, Margaret Joy Thirkill had capacity to make such application. In the light of the above, we are regrettably not able to proceed with the application in its current form. You may wish to consider relodging the application in your capacity as attorney.”

22. The Applicant did then file a further application, dated 25 th July 2024, as her mother’s attorney, on form DS1. The Land Registry noted that the Applicant confirmed that she had not sought consent from the Office of the Public Guardian to discharge the charge. The Respondent again objected to this application, on 13 th September 2024. His grounds for doing so were as follows:- i) he did not accept that £80,000 had actually been repaid, saying that the “redacted” statements were only a “snapshot”, and not evidence that the debt had been repaid or that Mrs. Thirkill still had that money. ii) he cast doubt on the 2018 letter which had accompanied the application, calling it “spurious”, having been “suddenly” produced and never referred to before, so that he was “highly suspicious of the provenance of the letter”. iii) he alleged that “Two amounts of £80K are owed to Margaret, so even if the 80K has been transferred, a debt of £80 still remains unpaid.” iv) he raised an alleged conflict of interest in the Applicant making such an application, and referred to an investigation of Mrs. Thirkill’s affairs then being conducted by the OPG.

23. The resulting dispute was then referred to this Tribunal on 20 th December 2024. Since then it has progressed via directions to the final hearing on 10 th February 2026. Somewhat unusually, the Respondent filed a statement of case and chronology before being directed to do so, and before the Applicant had filed hers. The Applicant’s Statement of Case, with a degree of repetition and a number of irrelevant personal matters between the parties, re-iterated her case that the 2012 charge had been repaid in full on 15 th January 2024; since any interest on it had been released. The Respondent summarised his case by saying that “nothing has changed in respect of my concerns raised at the outset of these proceedings”. He repeated his arguments about the alleged additional loan of £80,000, and that the 2018 letter not previously having been produced.

24. Not understanding the jurisdiction of this Tribunal on the only matter referred to it (the application to remove the charge), he also purported to claim that Mrs. Thirkill should be “the registered proprietor of the property” or have a restriction on the title to protect an alleged “beneficial interest”. No such applications have ever been made or referred to this Tribunal.

25. The only other relevant matter which transpired after the reference to this Tribunal was an apparent conclusion by the OPG to their investigations. In a letter to the Applicant dated 4 th February 2025, they stated that they had: “..now finished the investigation into your management of Mrs. Thirkill’s property and financial affairs.. … we have investigated the concerns raised and have found that your decisions about Mrs. Thirkill’s property and financial affairs were made in their best interests.” They were now therefore “closing our investigation.” This, and a brief courtesy email to the Applicant from the OPG investigator on the same day, is all that I have read or been told about this investigation. As far as I am aware, no “report” or decision was published. I have not seen the initial complaint or initiating letter from the “concern raiser”, who appears to have been the Respondent.

26. I do not therefore know precisely what the investigation covered. It is a reasonable inference, however, that it will have included the then very recent issue of the application to discharge and remove the charge. If the Respondent was the “concern raiser” (which he did not deny), it is most unlikely that he failed to mention this. Indeed, it is likely, given the terms and nature of his objection, that this was one of his primary concerns.

27. I therefore proceed on the basis, unless told otherwise, that:- i) the Office of the Public Guardian were aware, in their investigation, of the Applicant’s application as attorney to discharge the charge; and ii) the investigator has considered this, among other conduct, in concluding that the Applicant has acted in her mother’s best interests; so that the application is not vitiated or prevented by a conflict of interest. Further evidence

28. Save for some of the points already mentioned above, neither party had a great deal to add to their written statements of case, and neither asked the other a great number of questions. Lisa Pilbeam also provided three statements and gave evidence, but i) her first two statements were essentially agreements with her husband’s case; and ii) the third statement was chiefly for the purpose of exhibiting the 2019 emails discussed above.

29. It was a slightly curious feature of the Applicant’s evidence that she denied being the author, or even the co-author, of any of the 2019 emails – even those signed off with “Mark and Kate” or just “Kate”, and even where they referred to “Mark and I” or “Mum”. Her explanation was that her husband Mark had written all these emails, thinking he was trying to help, and that they all came from his email addresses. She had no explanation of why he appeared to have impersonated her when writing in the above form. Mark Galpin did not provide any witness statement or give any evidence in the case, so he could not be asked such questions.

30. While in the end I do not consider that it is particularly relevant to the issues which I have to decide, I consider that these emails were, if not directly written by the Applicant, clearly written with her authority and approval. That is what they show on their face. I consider that the Applicant was being needlessly evasive on this point. The relevant issues

31. The only application before the Tribunal is a DS1 application to remove a charge. The only real issue is therefore whether that charge has been discharged, by all sums due under it having been paid.

32. It is common ground that the 2012 charge secured a principal sum of £80,000 advanced in 2008. I have set out the relevant terms of the charge above as to interest.

33. I can deal with one persistent point of the Respondent relatively quickly. In this reference, and therefore these proceedings, the question of whether a further £80,000 payment from Mrs. Thirkill to the Applicant in 2019 was a loan or a gift simply does not arise. While the Respondent believes this was a loan and not a gift, he does not say – and would have no basis for saying – that it was a further advance made under the existing 2012 charge, and so secured by that charge as the original £80,000 was. On his own evidence, it was a subsequent and separate matter. He actually referred to it in his original objection as a further “unsecured” loan. I have, moreover, no evidence whatsoever as to the date of payment of this sum, or any other information about it.

34. That being so, there is no basis before me on which this subsequent payment can somehow be brought into account in deciding whether the 2012 charge has been repaid and discharged. Absent some clear evidence that a further sum was advanced and secured expressly under that charge, any such questions about any such further payments are unrelated and separate matters.

35. I will not therefore make any finding on that issue either way. Whether that or any other payments made by Mrs. Thirkill in her lifetime were loans or gifts might conceivably be an issue within her estate after she dies, but not the subject of these quite specific Tribunal proceedings.

36. The same applies to any issue as to Mrs. Thirkill’s contribution of some £50,000 to refurbishment work at the property in about 2010. The Applicant said that this was a voluntary contribution, but whether or not it was, it can have had nothing to do with the charge which is the subject of these proceedings.

37. I can also deal with a second factual point reasonably swiftly. The Respondent’s objection, then statement of case, sought to cast some doubt about whether the apparent capital payment of £80,000 to Mrs. Thirkill had actually been made. As late as the pre-trial review, Mr. Pilbeam made an application for specific disclosure of further bank statements on this basis. His argument then was that the payment might prove to be part of a “circular transaction” in which money went one way, but then another. The Applicant accordingly gave disclosure of the eighteen months’ worth of her mother bank statements specifically requested. These showed no such “circularity” or countervailing transfers.

38. I am therefore wholly satisfied that the Applicant paid the sum of £80,000 to her mother on 15 th January 2024. I am also satisfied that this was intended and treated by her as repayment of the capital of the 2008 loan secured by the 2012 charge. Waiver of interest?

39. The real, and ultimately only issue in these proceedings is therefore the interest which would have been due on the above sum under the terms of the charge.

40. As I have stated, neither party had actually disclosed and produced the charge until I asked for it. I have set out the terms as to interest above. Without doing a full and detailed calculation (which anyone with spreadsheet software, or the responsible use of generative artificial intelligence, could do), it is obvious that the accrual and monthly compounding of interest under that charge would have generated an overall balance significantly in excess of £80,000. This excess would probably have run into several tens of thousands of pounds by the present date, by 15 th January 2024 and also by 15 th March 2018.

41. It is common ground, and the Applicant accepts, that not a penny of interest has ever been paid on this loan. On any view, therefore, if any interest was due under the charge at the date of her purported repayment in full (15 th January 2024), then her application could not succeed.

42. The Applicant’s whole case therefore ultimately depends upon the efficacy of the 2018 document described above, in waiving or releasing all (then) past and future interest due under the terms of the charge. The 2018 document: discussion and conclusion

43. Despite the language used in his objection, and his adoption of that objection in his Statement of Case, the Respondent has not pursued any challenge to the authenticity of this document. He has not alleged that it was forged, either by being falsely dated or by Mrs. Thirkill’s signature being forged on it. No expert evidence was sought on any such matters. He did not put to the Applicant in cross-examination that the document was not genuine, or that she had created it after the event to support her application.

44. This being so, I have to accept the Applicant’s evidence that this is a document which she and her mother each signed on the date it bears, 15 th March 2018.

45. The issue then is as to the legal effect of this genuine document. Although both parties represented themselves, as was their perfect right, I was somewhat surprised that – given the trouble they have taken over their dispute generally, and their correspondence – neither of them made any meaningful legal submissions on this issue. Neither appeared to have conducted any significant legal research. The Respondent more or less concluded his submissions by saying that he did not know anything about such matters, and would simply bow to the decision of the Tribunal.

46. In these circumstances, I will decide the matter according to the applicable law as I understand it, despite the almost complete lack of submissions before me. Waiver: the law

47. The first point is that the 2012 charge was a legal charge, made by deed. In general, a variation to an instrument required to be made in writing or by deed must observe the same formalities as were required for its creation. The 2018 document, although on its face signed in the presence of a witness, was not executed “as a deed” for the purposes of section 1 Law of Property (Miscellaneous Provisions) Act 1989 , so did not have the effect of formally varying the provisions as to interest.

48. The more likely category into which the 2018 document might fall is that of waiver . As Chitty on Contracts (Volume 1, paragraph 26-037 and 26-044) summarises the position:- “A mere forbearance or concession afforded by one party to the other for the latter’s convenience and at his request does not constitute a variation, although it may be effective as a waiver or in equity. Such a forbearance or concession need not be supported by consideration, and can be made orally even when the contract is one which is required to be made or evidenced in writing…..Thus, what is ineffective as a variation may possibly have effect as a waiver.” Chitty further summarises the requirements for waiver as follows:- “The party who forbears will be bound by the waiver and cannot set up the original terms of the agreement. If, by words or conduct, he has agreed or led the other party to believe that he will accept performance at a later date than or in a different manner from that provided in the contract, he will not be able to refuse that performance when tendered…[26-045] “A waiver is also distinguishable from a variation of a contract in that there is no consideration for the forbearance moving from the party to whom it is given It may therefore be more satisfactory to regard this form of waiver, that is “waiver by estoppel”, as analogous to, or even identical with, equitable forbearance or “promissory” estoppel. Although consideration need not be proved, certain other requirements must be satisfied for such an estoppel to be effective: first, it must be clear and unequivocal; secondly, the other party must have altered his position in reliance on it, or at least acted on it. [26-047]

49. So a merely unilateral waiver or concession, with nothing in return i.e. no consideration, or no reliance and alteration of position by the other party, would not be enough. There has to be something given or done in return for, or in reliance on, the waiver.

50. I consider that there was such consideration, or something going the other way, in this case. While generally “past consideration” (e.g. recognition of past services rendered) is not sufficient, and could not amount to reliance on a waiver (since it would pre-date it), I consider that it is tolerably clear – on the face of the document and from the Applicant’s oral evidence – that the waiver and release of interest in the 2018 document was at least partly in recognition of the future care and accommodation which the Applicant would be providing to her mother.

51. It is sufficient that there was a mutual recognition and acknowledgement of this. It is irrelevant to ask whether the Applicant would ever, absent such an agreement, have charged her mother for care and rent. This document, which the Applicant said was mutually discussed and agreed between them, clearly linked the release of the interest to that future conduct.

52. It is likewise irrelevant to enquire into the value and adequacy of that consideration, or ask whether it was a good bargain or deal for Mrs. Thirkill. These proceedings do not concern any application to set aside the 2018 document on that or any other equitable ground. Any such application, whether made directly to this Tribunal under section 108(2) Land Registration Act 2002 or via the courts, would in any event have to be made by or on behalf of Mrs. Thirkill, or (after her death) a person representing her estate.

53. The sole issue in these proceedings is whether, according to its terms, the 2018 document had the effect of waiving and releasing both Mrs. Thirkill’s past and future entitlement to interest under the charge. For the reasons above, I am satisfied that it did. I am satisfied that the Applicant has acted on the agreement, in that although she did not do anything different, she continued to provide accommodation and care for her mother.

54. This being so, all that was required to discharge the charge on 15 th January 2024 was repayment of the principal sum of £80,000 to Mrs. Thirkill. I have found that such a payment was made. It therefore follows that the charge has been discharged and should now be removed. Disposal

55. I will therefore direct the Chief Land Registrar to give effect to the Applicant’s application dated 25 th July 2024.

56. The Applicant has therefore been the successful party. Any application by her for her costs of these proceedings as a litigant in person (by analogy with CPR 46.5, at the rate of £19 per hour or [since 1 st October 2025) £24), and any representations generally by either party on liability for the costs of these proceedings, should be made by the date stated in the order. After that date, any necessary further directions for the assessment of any costs ordered to be paid will be made. Judge Ewan Paton Dated this 12 th February 2026 By Order of The Tribunal