Theo Lester wins High Court appeal, with significant development in the law on formation of contract in the case of Kirishani v George Major [2026] EWHC 835 (Ch). The Judgment can be viewed here.
Sir Anthony Mann sitting in the Chancery Division of the High Court handed down an approved judgment on 14 April 2026, dismissing Ms Kirishana’s appeal. Theo represented the Respondent, Mr Major, in a second significant High Court judgment arising from this case (for the previous judgment see Kirishana v Major [2024] 1 WLR 213; [2023] 4 All ER 466; [2023] EWHC 1593 (KB)
Permission to appeal, against the trial judgment of HHJ Gerald, had been granted to Ms Kirishana by Cawson J in part on the basis that there was a ‘compelling reason’ for the appeal to be heard, that compelling reason being ‘an apparent dearth of authority as to the principles behind which legal relations might be found to be intended within a contemporary domestic cohabiting relationship other than marriage where the parties have their own distinct careers and finances.’
The background to the case was that the parties were cohabiting as unmarried partners in an intimate relationship for a time between 2016 and 2018. After the breakdown of the relationship Ms Kirishana issued the claim, alleging that Mr Major had entered into binding contracts with her during the relationship whereby he was liable to pay her for sums of money she had spent on holidays the couple took together, an agreement that he would contribute £1,000 in ‘rent’ whilst living in her property, and other claimed expenditure – sums that had been set out by the parties in a series of spreadsheets during the course of and after the end of the relationship.
The Appellant argued on appeal that HHJ Gerald had been wrong in the circumstances of the relationship in this case (which the Appellant characterised as ‘cohabitees’) to apply the well-established presumption against intention to create legal relations arising from the cases of Balfour v Balfour [1919] 2 KB 571 and Jones v Padavatton [1969] 1 WLR 328. In Balfour, a case where the parties were married, the Court of Appeal issued a celebrated judgment which established the presumption against intention to create legal relations in cases of married couples; Jones was a case involving a mother and daughter where that presumption had been found to apply in other familial or domestic relationships.
Sir Anthony Mann’s new judgment in Kirishana v Major at the outset squarely frames the issue ‘[a]t the heart of this appeal’ as being ‘the question of the extent to which the court will, or will not, infer an intention to create contractual relations in relation to dealings between unmarried cohabitees…’ (at [2]).
Theo on behalf of the Respondent argued that the presumption did apply, and sought to frame the applicable category to which the presumption should be applied not merely as ‘cohabitees’, but as those relationships which can be characterised as ‘domestic’ rather than ‘commercial’; this by contrast to the usual (opposite) presumption in commercial arrangements, which is that there is presumed to be an intention to create legal relations unless shown otherwise (see [25] of the judgment).
In arguing that HHJ Gerald had been right to apply the presumption in this case – and that he had not merely applied the presumption to a category label of ‘cohabitees’, as the Appellant’s argument proposed he had – Theo submitted that presumptions were tools used by the courts to facilitate and expedite the exercise of making evidential findings in certain circumstances, and that the process of establishing whether such a presumption arises in a particular case may ultimately be a similar one to that of simply assessing intention to create legal relations on the standard objective basis.
The High Court appears to have broadly accepted that position; Sir Anthony Mann noted at [31] in the judgment, in a review of the relevant case law, that the label ‘domestic … is useful word to use in this context’, and found that some ‘cohabitation relationships’ ‘will demonstrate all of the same sort of characteristics of domesticity which have led courts to apply the presumption to a husband/wife relationship – the sort of relationship where dealings in relation to domestic matters are governed by mutual trust and affection … To those it would be right to apply the presumption. Others will or may not demonstrate analogous features, in which case the presumption may not apply.’ (at [37])
Further, it was held that while ‘in any individual case, ascertaining whether the presumption exists may not differ much from an inquiry in the individual case as to whether objectively speaking there was an intention to create legal relations against the given factual background. But it does provide a useful starting point in relation to “domestic” relations.’ (at [38])
Sir Anthony Mann went on to find that HHJ Gerald had not erred in applying the presumption to the relationship in question in Kirishana v Major, nor (as the Appellant had argued) had he applied too high an evidential threshold for rebutting the presumption or failed to give full reasons. The appeal was therefore dismissed.
Theo Lester is available to accept instructions in public law (where he specialises in immigration and asylum), employment law and a broad range of civil, common law and commercial areas of practice. His profile can be viewed here.
Further information
For more information from the employment-civil team, contact clerks@36public.co.uk
Involving Theo Lester
