Land registration – Reference to adjudicator – Unilateral notice claiming right of way lodged against title to land – Landowner applying to cancel notice – Parties who lodged notice objecting to application – Dispute referred to adjudicator – Request to withdraw objection shortly before hearing — Adjudicator refusing request – Section 73(7) of Land Registration Act 2002 — Whether objector entitled to withdraw objection – Whether adjudicator having discretion to permit withdrawal – Appeal of Chief Land Registrar dismissed
In February 2008, the first and second respondents lodged a unilateral notice against the third respondent’s registered title to land, by which they asserted a right of way on foot over his garden in favour of their adjoining property. The third respondent applied to cancel the notice. The first and second respondents submitted an objection to the cancellation and the matter was referred to a deputy adjudicator in June 2008, pursuant to section 73(7) of the Land Registration Act 2002.
After witness statements had been exchanged and shortly before the hearing date in June 2009, the first and second respondents wrote to the adjudicator, indicating that they were having difficulties obtaining certain evidence and requesting permission to withdraw from the proceedings to enable them to bring court proceedings at a later date. The adjudicator refused permission on that basis at such a late stage. On the first day of the hearing, the first and second respondents again purported to withdraw their objection. None the less, the adjudicator proceeded with a hearing on the merits in their absence and concluded that the claimed right of way had not been established and that the unilateral notice should be cancelled.
The first and second respondents appealed; the Chief Land Registrar was joined as a respondent. Dismissing the appeal, the judge held that: (i) an objector could not withdraw an objection unilaterally once a dispute had been referred to an adjudicator; and (ii) the only way the first and second respondents could stop the reference from proceeding to a decision on the merits was by settling with the other party or conceding that party’s entitlement to the relief sought: see [2010] EWHC 1627 (Ch); [2010] 3 EGLR 25; [2010] 39 EG 110.
The first and second respondents appealed. However, they subsequently resolved their differences with the third respondent and took no further part in the proceedings. The Chief Land Registrar took over the appeal.
Held: The appeal was dismissed.
Where an objection was raised to an application to cancel a unilateral notice, and “the matter” was referred to the adjudicator under section 73(7), the matter so referred included the underlying merits. A reference to the adjudicator conferred jurisdiction on him to decide whether the application should succeed. That jurisdiction included the determination of the underlying merits of the claim that had provoked the making of the application. Where the application was to cancel a unilateral notice, the relevant issue would be the underlying merits of the claim to register the unilateral notice; in the instant case, whether the first and second respondents had the claimed right of way: Jayasinghe v Liyanage [2010] EWHC 265 (Ch); [2010] 1 EGLR 61; [2010] 16 EG 105 applied.
Once the matter was so referred, neither party could terminate the reference by its unilateral act so as to avoid a decision on the merits. The withdrawal by one party of its case did not terminate the reference or prevent the adjudicator from proceeding to rule on the merits. An objector could abandon its claim to a right of way and consent to a cancellation of the unilateral notice, in which case a consensual agreement to that effect could be reached with the applicant and the adjudicator could make an appropriate consent order reflecting that agreement. However, in the absence of such a consensual resolution of the parties’ differences, an objector could not, by withdrawing its objection, terminating the reference while reserving the unqualified right to reopen the same substantive claim to a right of way in the future.
Although an objector, whether the applicant or the respondent before the adjudicator, could withdraw its case, and could not be compelled to advance a case to the adjudicator if it no longer wanted to do so, it was for the adjudicator to rule, in his discretion, as to how to deal with any such withdrawal in the light of all the circumstances, including the stage the reference had reached and the reasons for the withdrawal. That would be a “decision” on the reference or a substantive issue arising in it, within r 41 of the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003, even if the adjudicator decided to terminate the reference without ruling on the underlying merits of the issues before him.
Although the 2003 Rules did not deal with the situation expressly, r 3 incorporated the overriding objective of dealing with cases justly. At an early stage of a reference, it might be just to permit the withdrawal and to make an order terminating the reference, with any appropriate direction to the registrar and order as to costs, thereby leaving an objector free to revive the same claim in the future. If the reference was significantly advanced, the adjudicator might still decide to terminate the reference, but on terms not only as to costs but also directing the registrar to reject any future applications of a specified kind from the withdrawing party. In other cases, particularly those in which the reference was far advanced, it might be appropriate for the adjudicator to proceed with the substantive hearing, rule on the merits of the issue and make such order as was appropriate. Contrary to the judge’s decision below, the adjudicator was not obliged to take that last course. However, the adjudicator had been entitled to do so in the instant case.
Per curiam: Although the reference of a dispute to the adjudicator might not prevent an objector from applying to the registrar for the cancellation of its unilateral notice as of right under section 35(3) of the 2002 Act, that would not necessarily bring the reference to an end and the proceedings before the adjudicator would remain alive until he had made a decision disposing of them.
Timothy Morshead QC (instructed by the Treasury Solicitor) appeared for the appellant, the Chief Land Registrar; Amanda Tipples QC (instructed by the Treasury Solicitor) appeared as an advocate to the court; the respondents did not appear and were not represented.
Sally Dobson, barrister
