Appellant registering covenant as notice against respondent’s title — Respondent breaching covenant — Registrar granting consent for appellant’s registration of caution against dealings against respondent’s title — Whether registrar erring in failing to make express reference to proviso in section 54(1) of Land Registration Act 1925 — Appeal allowed
The appellant owned land, part of which he sold to the respondent. The transfer of the land included a covenant regarding drainage to the benefit of the retained land, which the appellant registered as a notice against the respondent’s title in the charges register. The respondent subsequently breached the covenant, whereupon the appellant commenced proceedings for an injunction, applying to have a caution against dealings lodged against the respondent’s title.
The matter was referred to an assistant land registrar, who approved the application on the ground that, although there was some doubt that the interest noted in the declaration was one that could be protected by way of caution, the land registry had the power to exercise discretion in the matter under the provisions of section 56(3) of the Land Registration Act 1925. It appeared, however, that the registrar had failed to consider the proviso in section 54(1) of the 1925 Act, which held that an applicant who had already registered an interest in the land could not subsequently lodge a caution without the consent of the registrar. The respondent maintained that the registrar’s failure to consider the proviso meant that his consent to the registration of the caution was unlawful. The judge found that, on the balance of probabilities, the registrar had failed to consider the proviso to section 54(1), and found in favour of the respondent that there was, accordingly, no basis in law for the registration of the caution.
The appellant appealed on the ground, inter alia, that the judge had erred in applying such a gloss to the proviso to section 54(1), since the effect would be to bring the private thought processes of the land registrar into the public arena. If, on an objective view of the facts, the registrar had given consent to the registration, it was inappropriate for the parties or the court to investigate further.
Held: The appeal was allowed.
The proviso in section 54(1) of the Land Registration Act 1925 demonstrates that the consent given by the registrar was no more than consent to lodge the caution, its purpose being to avoid the unnecessary duplication of the registration of minor interests. It did not serve to guarantee that such a caution was well-founded or immune to challenge, and the registrar’s responsibility was not to address the reasons for the caution but to consider only the entitlement of the cautioner to lodge the caution. There was no onus upon the cautioner to establish the reason why the registrar gave his consent, and the thought processes of the registrar should not have to be determined, nor should they form the basis of litigation.
Although the statutory forms for lodging cautions do not provide for any particular form of wording, it was good practice for the cautioner to draw attention to the fact that consent was sought under the proviso in section 54(1).
John McGhee (instructed by Eversheds, of Birmingham) appeared for the appellant; Derek Wood QC and Stephen Pritchett (instructed by Cobbetts, of Leeds) appeared for the respondent.
Vivienne Lane, barrister