The Land Registration Act 2002 created an independent adjudicator with responsibility for resolving disputes relating to registered land. It was originally envisaged that the adjudicator to the Land Registry would occupy a part-time position, but his workload is such that he now has more than 30 deputies. Inevitably, questions concerning the scope of his jurisdiction are now being referred to the courts.
In Silkstone v Tatnall [2010] EWHC 1627 (Ch); [2010] PLSCS 183, the owners of land affected by a unilateral notice claiming the benefit of rights of way across their land applied for cancellation of the notice. The adjoining owners objected to the application and the dispute was referred to the adjudicator.
In due course, the beneficiaries of the notice tried to withdraw their objection to the cancellation due to difficulties in obtaining evidence. The withdrawal of their objection would have meant that the register was cleared of the notice asserting a right of way in their favour but that they would retain the right to reassert their claim in future proceedings.
The adjudicator refused to allow the objection to be withdrawn on the ground that it was necessary to bring the litigation to a conclusion. The beneficiaries of the notice argued that they had withdrawn the case from the adjudicator, thereby depriving him of jurisdiction to deal with it. Consequently, the High Court had to decide whether the adjudicator’s role was to provide a mechanism for disposing of applications to which there is a subsisting administrative objection or whether his function was to determine the rights of parties in dispute.
The judge disapproved of the suggestion that parties should be entitled to deprive the adjudicator of jurisdiction at the last minute to preserve their right to relitigate in a more expensive forum. The adjudicator’s role was to determine the underlying rights of parties in dispute, and his jurisdiction continued despite the purported withdrawal of the objection to the application to cancel the unilateral notice.
The decision confirms that parties are not entitled to withdraw proceedings from the adjudicator. However, withdrawing from the proceedings is a different matter. Any defending party that fails to appear or to take part in legal proceedings, exposes itself to the possibility that its opponent will successfully establish the case against it in its absence. If a party wants to take no further part in proceedings before the adjudicator, it is free to do so; the land registration rules do not require it to seek the adjudicator’s permission. However, the adjudicator may then proceed with the reference, consider the evidence that is before him and decide the case accordingly.
Consequently, parties would be well advised to assemble the requisite evidence before making claims that could be referred to the adjudicator. Parties that fail to do so risk losing their cases or could be forced to extricate themselves by conceding or by settling the dispute.
Allyson Colby is a property law consultant
