Registration — Alteration of registered title — Powers of adjudicator — Effect of boundary alteration — Whether adjudicator having discretion to refuse alteration of register in exceptional circumstances — Paragraphs 5 and 6(3) of Schedule 4 to Land Registration Act 2002 — Whether adjudicator correctly exercising discretion — Whether adjudicator erring in costs award
The appellants applied to the Land Registry to alter a registered freehold title, of which the respondents were the proprietors, on the ground that the filed plan showed the title as including a strip of land that belonged to the appellants as owners of the adjoining unregistered land. The respondents objected to the application, which was referred to an adjudicator under section 73(7) of the Land Registration Act 2002. The adjudicator found that: (i) all save a small area of the strip fell within the appellants’ paper title; (ii) the general boundary line shown on the filed plan was in the wrong place and did not reflect the precise extent of the respondents’ land, which was defined by the pre-registration documents; but (iii) exceptional circumstances justified a refusal to alter the register, given that the respondents had built a garage on the land and it was arguable whether a court would grant an injunction ordering them to demolish their work and to give the land to the appellants, rather than merely awarding damages. The adjudicator refused to award the appellants their costs and ordered them to pay half of the respondents’ costs.
The appellants appealed. The issues were whether the arbitrator: (i) had correctly identified the pre-registration boundary; (ii) should have ordered the register to be altered; and (iii) should have made a different costs order. On the second point, the appellants submitted that the test of exceptional circumstances was applicable only to rectification applications, by virtue of para 6(3) of Schedule 4, whereas alteration of the boundary did not involve rectification because it would not prejudicially affect the respondents’ title.
Held: The appeal was dismissed. (1) Having regard to the conveyancing evidence, the appellants’ paper title included the entire disputed strip. (2) This was not a rectification case. Altering the register would not prejudicially affect the respondents’ title; the effect of the adjudicator’s decision was that the respondents did not have a registered title to the disputed strip, and redrawing the boundary on the filed plan would therefore take nothing away from them. Accordingly, para 6(3) of Schedule 4 did not apply. However, the adjudicator had been entitled to take the view that if the circumstances were exceptional, he could properly refuse the application: see the general discretion conferred by para 5 and, by analogy, the position on applications to the courts under r 126 of the Land Registration Rules 2003. The adjudicator had properly exercised his discretion. If the appellants failed in any attempt to recover the land from the respondents, the alteration of the general boundary shown on the register would not serve the purpose of making the register more accurate. It would accord with the appellants’ paper title but not with the practical reality on the ground. Alteration of the register would lead not to greater clarity but to confusion, and would serve no useful purpose. The adjudicator had been entitled to have regard to those considerations as being relevant to the exercise of his discretion. (3) His costs order could not be impugned. He had been entitled to take the view that there should be no order in favour of the appellants because they had failed to obtain the relief sought, even though the respondents lost on some of the issues before him. He had been entitled to order the appellants to pay some, but not all, of the respondents’ costs to reflect the fact that the respondents had won, but had not succeeded upon all the issues.
The following cases are referred to in this report.
Claridge v Tingey; sub nom Sea View Gardens, Re, Claridge v Tingey [1967] 1 WLR 134; [1966] 3 All ER 935
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225, HL
Lee v Barrey [1957] Ch 251
This was an appeal by the appellants, Derbyshire County Council, against a decision of Mr Michael Mark, as a deputy adjudicator to HM Land Registry, dismissing an application to alter a registered freehold title held by the respondents, Glen Fallon and Tracy Fallon.
Soofi Din (instructed by the legal department of Derbyshire County Council) appeared for the appellants; Martin Strutt (instructed by Nelsons, of Birmingham) represented the respondents.
Giving judgment, Mr Christopher Nugee QC said:
Introduction
[1] I have before me an appeal by Derbyshire County Council (the council) from a decision dated 23 November 2006 (the decision) made by Mr Michael Mark, sitting as a deputy adjudicator to HM Land Registry, under the Land Registration Act 2002 (the 2002 Act).
[2] The office of adjudicator to HM Land Registry was created by the 2002 Act and is governed by Part 11 of the Act. The functions of the adjudicator are set out in section 108 and include (by section 108(1)(a)) “determining matters referred to him under section 73(7)”. The effect of section 73(7) is that where an application is made to the registrar under the 2002 Act and an objection is made, then, unless the registrar is satisfied that the objection is groundless or it is possible to dispose of it by agreement, the registrar must refer the matter to the adjudicator.
[3] In the present case, the council applied to the registrar to alter the register of title no DY 185906. This is a freehold title of which Mr Glen Fallon and Mrs Tracy Fallon are the registered proprietors and they objected to the application. It was therefore referred, under section 73(7), to the adjudicator and, in due course, came before Mr Mark. Although sitting as a deputy adjudicator, I will refer to him as “the adjudicator”. He refused the council’s application and directed the council to pay one-half of the Fallons’ costs. An appeal lies from such a decision to the High Court under section 111(2) of the 2002 Act; permission is required for such an appeal (see practice direction appeals, supplementing para 23.8B(1) of CPR 52) and was given to the council by Warren J on 22 January 2007.
[4] The council own the land adjoining the Fallons’ land. Their title is unregistered. Their case before the adjudicator was that the filed plan of title no DY 185906 showed the boundary between the Fallons’ land and the council’s land in the wrong place, so that part of the land shown on the filed plan as included in the registered title was in fact owned by the council.
[5] This gave rise to the following issues before the adjudicator, which were set out in an agreed schedule of issues: (i) where (ignoring the effect of registration) was the boundary between the council’s land and the Fallons’ land (the paper title issue)?; (ii) if the council won on that issue, whether their title was barred by limitation (the adverse possession issue); and (iii) if the council won on both those issues, whether the dispute was a boundary or a property dispute, that is, whether the “general boundaries rule” was to be applied in order to determine the exact line of the boundary (the general boundaries rule issue). There were then set out a further three issues that arose were the council to lose on the general boundaries rule issue, which I will refer to later.
[6] In the event, the adjudicator held in favour of the council on each of the first three issues, save for a comparatively minor point on the paper title issue. However, for reasons that I will come to in due |page:45| course, he declined to grant the council the relief that they sought of amending the register. The council appeal both the minor point on the paper title issue and the refusal to amend the register and seek an order altering the filed plan so as to exclude from the title the land in dispute. They also appeal the order for costs. There is no cross-appeal. In essence, therefore, there are only three points for me to decide: did the adjudicator correctly identify where the preregistration boundary lay?; should he, in the light of his findings, have directed the registrar to alter the register?; and should he have made a different order for costs?
Paper title issue
[7] In order to explain this point, I must set out some of the conveyancing history:
(i) Title no DY 185906 is the registered freehold title to land at 18 Ambaston Lane, Shardlow, Derbyshire. The filed plan shows a roughly triangular plot with a detached house built on it; it lies on the inside of a corner where Ambaston Lane turns from running north-west to roughly north, but it does not extend all the way to the road since the council own a substantial parcel of land between the plot and the road. The filed plan shows the Fallons’ land as having a straight boundary to the north (adjoining a field), an almost straight but slightly kinked boundary on the east (adjoining 16 Ambaston Lane) and a curved boundary on the remaining side (south-west), which is the boundary with the council’s land.
(ii) The council’s case is that the true boundary between the two parcels is that shown on two conveyances to them, each dated 16 August 1966. This boundary line has been plotted on a plan prepared by GreenHatch Ltd for the purposes of this dispute, which shows that it lies some distance further to the north-east than the boundary shown on the filed plan. The adjudicator referred to the strip between the two (the disputed strip) as around 36m long and varying between around 2m to 4m wide. I would not myself have thought that the disputed strip was quite as long as that, but nothing turns on the precise length the disputed strip is identifiable from the GreenHatch plan.
(iii) The Fallons’ land and the council’s land (which together make up a roughly square plot on the inside of the corner of Ambaston Lane) were formerly owned by the trustees of the will of Sir Henry Sutton (the Sutton trustees). There were then four cottages on them (part of a row of five cottages, the fifth of which appears to survive as what is now 16 Ambaston Lane). One of the cottages (the second nearest the road, then apparently called 4 Ambaston Lane) was sold by the Sutton trustees in 1950 to Mrs Esther Poulton, and Mrs Poulton in turn conveyed it, on 5 July 1954, to Mrs Alice Wheeler.
(iv) In 1964, the four cottages were the subject of a clearance order. The one that had been sold was by then owned by Mrs Wheeler’s executor and the Sutton trustees retained the other three. The council, which were the highway authority, became interested in acquiring the front part of the site for highway purposes; and a recommendation to purchase either the front part of the site for road widening purposes (said to be 410 sq yd) or, if necessary, the entire site (said to be 785 sq yd) was approved in September 1964.
(v) Meanwhile, the land had been surveyed by, or under the direction of, the county surveyor, Mr S Mehew; the survey plan indicates that the land was surveyed in August 1964 and the plan drawn in September. This plan (the 1964 plan) is drawn to a 1:500 scale and shows a curved boundary dividing the front part of the site from the remainder. The front part is itself divided into two pink areas and one green area, representing the land owned by the Suttton trustees and Mrs Wheeler’s executor respectively, and the plan is marked to show that these areas were 315 sq yd (pink) and 95 sq yd (green), thus together adding up to the 410 sq yd mentioned in the report recommending purchase. The plan also shows the dimensions of the triangular plot that would be left; these are marked as 69ft (the northern boundary), 77ft (the kinked eastern boundary) and 95ft (the curved southwestern boundary).
(vi) A letter from the district valuer to Mr Mehew of 16 February 1965 shows that purchase of the site had been agreed in principle with the Sutton trustees’ agent, and asked Mr Mehew to arrange for the boundary line to be pegged out. A reply of 26 March 1965 indicates that the pegging out had by then been completed.
(vii) On 24 December 1965, Mrs Wheeler’s executor conveyed to Mr Donald Sharman the part of her land not wanted by the council. The conveyance does not appear to be available, but it is referred to in a memorandum endorsed on the conveyance of 5 July 1954, under which the land was conveyed by Mrs Poulton to Mrs Wheeler. This memorandum refers to a plan, a copy of which was attached (the 1965 plan); it is a small plan that shows the general position of the curved boundary, but is neither said to be to scale nor contains any dimensions.
(viii) On 25 February 1966, the Sutton trustees and Mrs Wheeler’s executor entered into a contract of sale with the council, under which they agreed to sell the front strip of land, described as an area amounting to 410 sq yd or thereabouts. The plan annexed is similar (but not identical) to the 1965 plan; unlike that plan, it does give dimensions of the triangular plot. These are difficult to read on the copy plan that I have seen, but appear to accord with those shown on the 1964 plan, namely 69ft (north), 77ft (east) and 95ft (south-west).
(ix) In June 1966, Mr Sharman applied for planning permission for the erection of a house on the triangular plot, describing himself as the owner of the land. The adjudicator inferred that he had by then acquired the remainder of the plot from the Sutton trustees, and this is not disputed on appeal. Indeed, before me, Mr Soofi Din, who appeared on behalf of the council, accepted that he probably acquired it at the same time as he acquired the Wheeler part of the plot, in December 1965. The plan accompanying the planning application (the 1966 plan) is said to be 1:500 scale and gives the dimensions of the triangular plot as 67ft (north), 77ft (east) and 98ft (curved boundary to south-west).
(x) On 16 August 1966, the sale of the front strip to the council was completed by two conveyances, one by the Sutton trustees and the other by Mrs Wheeler’s executor. Each conveyance annexed a copy of the 1964 plan and described the land conveyed by reference to the areas given on that survey, namely “95 square yards or thereabouts”, in the case of the land conveyed by Mrs Wheeler’s executor, and two parcels together comprising “315 square yards or thereabouts”, in the case of the land conveyed by the Sutton trustees.
(xi) Mr Sharman built a detached house on his land called Sharman House. In 1972, he conveyed the land to a Mr and Mrs Ledger. The adjudicator recorded that the plans to this conveyance (which appear to have been similar to the 1965 plan) showed that it purported to convey almost all the disputed strip. After a series of further conveyances and transfers (one of which led to the first registration of the land in 1989), the land was ultimately transferred to the Fallons in 1994 and they were registered as proprietors.
(xii) The filed plan to the registered title shows the relevant boundary with a dotted line and there is a note on the filed plan to the effect:
The boundaries shown by the dotted lines have been plotted from the plans on the deeds. The title plan may be updated from later survey information.
The adjudicator noted that the boundary as shown on the filed plan was in approximately the same position as in the plan to the 1972 conveyance. He inferred that, in each case, what was sold on after 1972 was that described as being sold in the 1972 conveyance. As a result, the filed plan shows the disputed strip as being included in the registered title.
[8] It follows from the history that I have recited, as pointed out by the adjudicator, that the first conveyance by the Sutton trustees and Mrs Wheeler’s executor was in each case that to Mr Sharman, so that what was conveyed to the council was whatever land was left. The critical issue, therefore, for the question of where the boundary lies on the paper title is, is what land was conveyed to Mr Sharman. The adjudicator rejected an argument for the Fallons that this was to be determined by reference to the 1965 plan, and held that it was to be determined by reference to the boundary as pegged out on the ground that had already taken place in February or March 1965: see para 13 of the decision. This is not disputed on appeal and seems to me plainly right. |page:46|
[9] There remains the question of where the pegged out boundary actually lay. There is no direct evidence available. The council’s case is that the adjudicator should have held that the boundary was pegged out in early 1965 along the line indicated by the measurements shown on the council’s 1964 plan (that is, along a boundary 95ft long that met the then northern boundary 69ft from the north-east corner of the plot the current northern boundary of the Fallons’ land is slightly further north). The adjudicator, however, held that it was marginally more likely that the boundary was pegged along the line shown on Mr Sharman’s 1966 plan (that is, along a boundary 98ft long that met the then northern boundary 67ft from the north-east corner).
[10] Mr Din suggested that when Mr Sharman submitted the planning application in 1966, the dimensions on the accompanying plan may have been taken from the council’s 1964 plan and misread. This seems to me unlikely: two of the three measurements are different, and although the 95ft marked on the 1964 plan might just have been mistaken for 98ft (it is, however, clear enough to me), I do not see how the 69ft could readily have been misread as 67ft, and it is too far-fetched to think that both figures were misread. It seems to me more likely that the 1966 plan was drawn up afresh: it has a name (which appears to be Mr Neil Moore) at the bottom with an address in Spondon, Derby, and the inference that I draw is that Mr Moore drew up the plan from measurements taken on the ground rather than from a misreading of the council’s 1964 plan.
[11] That does not, however, answer the question. As Mr Din submitted, the pegging out was carried out (in February or March 1965) by, or under the supervision of, the county surveyor, Mr Mehew, who had also been responsible for the 1964 plan. I agree that it is likely that he would have wanted the pegging-out to follow the line shown on the 1964 plan. There is no apparent reason why, having gone to the trouble of drawing up a measured survey, he would have had the boundary pegged anywhere else. When one adds to that the fact that the Sutton trustees and Mrs Wheeler’s executor entered into a contract with the council in February 1966 that, so far as one can tell, has the same measurements as shown on the 1964 plan (and under which the land contracted to be sold was the same area, 410 sq yd, as shown on the 1964 plan), and the fact that when the conveyances were executed in August 1966 the conveyance plan used in each case was the 1964 plan, it seems to me a safe inference that there had been no conscious decision to draw the boundary anywhere else. The Sutton trustees, Mrs Wheeler’s executor and the council were all apparently proceeding, in 1966, on the assumption that the boundary was where it had been shown on the 1964 plan.
[12] The only piece of evidence that casts any doubt upon this is the 1966 plan annexed to Mr Sharman’s planning application. I agree with the adjudicator that since it appears that this was drawn up after the pegging-out, it was presumably made by reference to the boundary as staked out. The choice is therefore between the pegging-out having been carried out in the wrong place and Mr Moore (or whoever measured the boundaries in drawing up the 1966 plan) getting the measurements right, and the pegging-out having been carried out as intended and Mr Moore getting the measurements slightly wrong.
[13] The adjudicator concluded that the former was marginally more likely and that, in any event, the council had not established a paper title to the small area of land that would be included on the basis of its 1964 plan measurements but excluded using Mr Sharman’s 1966 plan measurements. I acknowledge that there is very little evidence one way or the other, but this is a point that turns entirely on the inferences to be drawn from the surviving documents and upon which I am in as good a position to draw inferences as the adjudicator. After careful consideration I have come to the conclusion that it is more likely that the pegged-out boundary was as shown on the 1964 plan.
[14] The 1964 plan was a carefully drawn survey. Its very purpose was to identify that part of the then undivided land that the council should seek to acquire for highway purposes. In other words, it was always intended to form the basis for, first, the negotiation of, and then the completion of, the purchase of the front part of the site. Having gone to such care to draw up a detailed and measured survey plan, I think that it would be surprising if Mr Mehew had not also taken some care to ensure that what was marked on the ground coincided with what the council had actually resolved to acquire. Moreover, as I have said, I think that it is evident that the Sutton trustees, Mrs Wheeler’s executor and the council all continued to believe, in both February and August 1966, that what was being sold and conveyed to the council was what was shown on the 1964 plan.
[15] By contrast, the 1966 plan was not drawn up for the purposes of dividing the site or for being used as the basis for a conveyance. It was a plan annexed to a planning application and is considerably less detailed than the 1964 plan. Although it gives the measurements of the boundaries, it is unlikely that the precise measurements would affect the outcome of the application. What was important was that the house conformed with the building line of 15ft apparently required by the planning authority.
[16] In these circumstances, I consider that it is more probable that the measurements shown on the 1966 plan are not quite accurate than that the pegging-out was in the wrong place. Nor do I think that this an appropriate case to decide on the burden of proof; where the court is asked to determine where a boundary lies, I think that it should be very reluctant in effect to say that it cannot be determined. I think that it is preferable for the court to do its best, even with the limited material available, to assess where the probabilities lie. In my judgment, therefore, the council have established that their paper title extends to the boundary line as shown on the 1964 plan and, hence, includes all the disputed strip.
General boundaries issue
[17] The adjudicator next considered whether the fact that the disputed strip was included in the filed plan meant that the Fallons had acquired a registered title to it. This is the general boundaries issue. Following the decision of the Court of Appeal in Lee v Barrey [1957] Ch 251, which turned on a similar question, he decided this issue in favour of the council. Since there is no appeal against this, it is unnecessary for me to refer to it in any detail. In short, the effect of the general boundaries rule in r 278 of the Land Registration Rules 1925 was that when the Fallons’ land was registered, the boundary indicated on the filed plan did not represent the actual boundary of their title and could not be relied upon to indicate the precise extent of their land. That could be determined, therefore, only by looking at where the boundary lay by reference to the pre-registration documents. The adjudicator therefore concluded that the extent of their registered title is no greater than that of their unregistered predecessors in title and that the boundary of the land is the same as it was following the conveyances to Mr Sharman.
Adverse possession issue
[18] The adjudicator also dismissed a claim by the Fallons to have acquired title to the disputed strip by adverse possession. Again, his conclusion is not challenged on this appeal, so I do not need to set out the details of this issue. In essence, he held that there had been no attempt to exclude the world at large before 1995 or 1996 (when the Fallons built an angled breeze-block wall that incorporated the northern part of the disputed strip into their garden).
Adjudicator’s powers to amend the register
[19] The result of his decision on these three issues was, as he said, that:
the boundary is incorrectly shown on the Land Registry plan, and it is necessary to consider whether I should direct that it should be corrected.
The second issue on appeal is whether his decision not to do so was wrong.
[20] I must start by briefly referring to the relevant statutory provisions. These are now found in the 2002 Act and specifically in Schedule 4, which is given effect to by section 65 and which deals generally with what is now called “alteration” of the register. This is a deliberate change in terminology from the Land Registration Act 1925 (the 1925 Act), which had conferred power on the court and |page:47| the registrar to “rectify” the register in a number of disparate situations. Under the 2002 Act, however, the general term used is “alteration”, and “rectification” is a narrower concept that is used to refer to a specific type of alteration. This is the effect of para 1 of Schedule 4, which is in these terms:
Introductory
1 In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which
(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor.
[21] Schedule 4 contains separate provisions in relation to alteration pursuant to a court order (paras 2 to 4) and alteration otherwise than pursuant to a court order (paras 5 to 7). The adjudicator was concerned with the latter. They provide, as follows:
5 Alteration otherwise than pursuant to a court order
The registrar may alter the register for the purpose of
(a) correcting a mistake,
(b) bringing the register up to date,
(c) giving effect to any estate, right or interest excepted from the effect of registration, or
(d) removing a superfluous entry.
6 (1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.
(2) No alteration affecting the title of a registered proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to the land in his possession unless
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.
…
7 Rules may
(a) make provision about the circumstances in which there is a duty to exercise the power under paragraph 5, so far as not relating to rectification;
In the case of rectification, therefore, the powers of the registrar are restricted by para 6(2), but if these restrictions are overcome, the registrar is under a duty to alter unless there are exceptional circumstances. In the case of an alteration that is not a rectification, Schedule 4 does not itself make any provision, but confers a rule-making power that, I was told, has not been exercised.
[22] Similar provisions apply in the case of alteration pursuant to a court order. Paragraph 2 confers on the court a power to order alteration in similar terms to para 5 (with the omission of subpara (d)); para 3 imposes restrictions in the case of rectification in similar terms to para 6; and para 4(a) confers a rule-making power similar to that in para 7(a). However, in this case, the power has been exercised, namely by r 126 of the Land Registration Rules 2003 (the 2003 Rules), which provides, in effect, that, in a non-registration case, the court must make an order for alteration once it has concluded that para 2 applies, unless there are exceptional circumstances that justify not doing so.
[23] The Fallons’ case before the adjudicator included a contention that the council’s application was an application for rectification and should be refused because they were proprietors in possession and entitled to the protection of para 6(2) of Schedule 4. This led to issues 4 to 6 of the agreed schedule of issues in these terms:
4 If the rule does not apply and the Register may be Rectified: are the Respondents registered proprietors “in possession” of the disputed land within the meaning of the LRA 2002 (“the Possession Issue”)?
5 If the Respondents are not in material possession of the disputed land, should the Register be rectified?
6 If the Respondents are in material possession of the disputed land, “would it for any other reason be unjust for” the register not to be rectified?
(The reference in issue 4 to “the rule” is a reference to the general boundaries rule referred to in issue 3.) It can be seen that the drafting of these issues assumed that issues 4 to 6 would not arise unless the council lost on the general boundaries issue. This seems to me to be right. Issues 4 to 6 are all concerned with the exercise of the power to alter in a case of rectification, but an alteration is a rectification only if it prejudicially affects the title of a registered proprietor. However, if the council succeeded on the first three issues, the alteration of the register would not prejudicially affect the Fallons’ title: the effect of the adjudicator’s decision on the first three issues would be (and, in the event, was) that they did not have a registered title to the disputed strip, and redrawing the boundary on the filed plan would not therefore take anything away from them. In these circumstances, I agree with Mr Din that issues 4 to 6 did not in fact arise for decision.
[24] What actually happened is that after the hearing (which took place on 26 and 27 July 2006), the adjudicator issued a draft of his decision on 1 September 2006, in which he proposed to refuse the council’s application on the ground that there were exceptional circumstances justifying not making the alteration. The parties then made written submissions on permission to appeal and costs; the council, among other things, submitted that in finding there to be exceptional circumstances, the adjudicator had wrongly applied para 6(3) of Schedule 4 to the 2002 Act when he should not have done so because it was not a case of rectification, and that, in any event, he should have given the council an opportunity to be heard on the point. In these circumstances, the adjudicator invited a further hearing, which took place on 7 November 2006, and then issued his final decision on 23 November 2006.
[25] The final decision was to the same effect as the draft decision, but expanded in the light of the further hearing that had taken place. Mr Din took me through the draft decision and compared it with the final decision to indicate what changes had been made. The thrust of his submission was that, in the draft decision, the adjudicator had found exceptional circumstances under para 6 of Schedule 4, whereas in the final version of the decision, the adjudicator had reached the same result by a different route. This may well be right, but I do not think that it is necessary to detail the precise evolution of the final version: where a draft decision has been superseded by a final version, any appeal has to be determined by the terms of that final decision and in general and certainly in this case it is not necessary for the appellate court to investigate the terms of a draft that, ex hypothesi, does not represent the final authoritative expression of the reasons for the decision.
Adjudicator’s reasons for refusing the application
[26] I come then to the reasons given by the adjudicator in the final decision for refusing the application. He proceeded as follows:
(i) Having found that the boundary line as shown on the filed plan was a general boundary and shown in the wrong place, he held that this was clearly a mistake that might be corrected under para 5 of Schedule 4 to the 2002 Act: see para 45 of the decision. This seems plainly right and is not challenged on appeal.
(ii) He then identified three questions that arose under para 6 of Schedule 4, namely whether: (a) the alteration, if made, would affect the Fallons’ title; (b) the alteration would be in relation to land in the Fallons’ possession; and (c) it would be unjust for the alteration not to be made. He then added a further question (d), namely whether there were exceptional circumstances that justified not making the alteration: see para 46.
(iii) He then considered, in some detail, the history of events since the Fallons acquired Sharman House: see para 48 to 67. He explained that the Fallons first built a garage, driveway and the angled breeze-block wall in 1995-96; then, in 2000, they applied (to the planning authority, South Derbyshire District Council) for planning permission to build a further double garage and a new brick wall, which was granted subject to the highway boundary (that is, the boundary with the council’s land) being resolved; and that despite a site meeting in 2001 with council officers, and around a year’s correspondence between the Fallons’ solicitor and the council, the boundary was not resolved. The correspondence culminated in a letter from the Fallons’ solicitor in May 2002 to the effect that unless the council applied to HM Land Registry to rectify the title, the Fallons would continue to treat all the |page:48| land shown on the filed plan as their own and, in particular, that they proposed to build a garage on part of it. In September 2002, the Fallons submitted a revised application for planning permission; the council’s response this time was that “the Highway Authority would not want to restrict the grant of planning permission”, and permission was granted in November 2002. The adjudicator said that he accepted Mr Fallon’s evidence, that he concluded from the lack of continued objection that the council were not disputing his ownership to the boundary shown on the Land Registry plan. Work started in spring 2003, and the bulk of it had been carried out when the council first wrote, at the end of April 2003, saying that the garage wall and driveway appeared to conflict with the council’s ownership. Mr Fallon finished the work and, in July 2003, the council noticed that it had been carried out; this led to the council’s application to the Land Registry in August 2003.
(iv) The adjudicator then turned to the first of the four questions that he had identified, namely whether the alteration would affect the Fallons’ title. He correctly said that it would not affect their paper title; what it would do would be to produce “another general boundary in a more accurate position than the current general boundary”: see para 68.
(v) He continued:
69. However at this stage more than the paper title is in issue. In Lee v Barrey, there was no claim for an injunction to compel the defendant to pull down his house. No doubt there would have been an award of damages to compensate the plaintiff for the loss of the land, with the practical result that the area of land on which the house was built would have been incorporated into the defendant’s registered title. In the present case there appears to me to be at least a serious issue as to whether, in the circumstances which I have described, a court would grant an injunction ordering the Fallons to demolish all or any of the work they have carried out and hand over the land to the Council rather than either simply awarding damages for trespass either in respect of the new garage or, possibly, in respect of the whole of the land built over and enclosed.
70. At the further hearing on 7 November 2006, counsel for the Council conceded that there was a triable issue as to whether the Council was estopped from pursuing any claim to the disputed land and as to whether, apart from any question of estoppel, the Council was entitled to a mandatory injunction to get the structures on the disputed land removed.
(vi) He did not, however, answer the question of whether the alteration could be said to affect the Fallons’ title, but held that if it could, it would not be unjust for the alteration not to be made, relying upon the fact that: (a) the land was of little value to the council; (b) they had neglected to define their boundaries adequately for 35 years; (c) this had contributed to the confusion over the boundary; and (d) they had failed either to respond to the 2001 invitation by the Fallons’ solicitor to apply for the plan to be altered or to object to the 2002 application for permission, leading Mr Fallon to believe that they had abandoned their claim: see paras 71 to 72.
(vii) He then continued:
73. In the end I do not find it necessary to come to a conclusion on this issue because I have come to the clear conclusion that even if the alteration would not affect the Fallons’ title, the facts to which I have referred constitute exceptional circumstances which justify not making the alteration unless and until a court has decided whether to order the Fallons to remove all or any of the wall, buildings and paving which trespass on the Council’s property, taking into account, for example, the principles set out by the Court of Appeal in Jaggard v Sawyer [1995] 1 WLR 269, or agreement has been reached between the Fallons and the Council on this matter. To alter it while this issue remained unclear would not lead to greater clarity but only to confusion as the Fallons’ development would be over the new boundary line and there would remain a real possibility, if not a likelihood, that all or some of it would remain and be effectively owned by the Fallons.
(viii) He then pointed out that, in a non-rectification case, para 5 of Schedule 4 to the 2002 Act conferred a discretion on the Chief Land Registrar; that r 126 of the 2003 Rules required the court, in a non-rectification case, to order alteration unless there were exceptional circumstances, and concluded that he should apply a similar test on the assumption that the present case was a non-rectification case: see para 74.
(ix) He then identified the reasons for concluding that this was an exceptional case: see paras 75 to 81. I will deal with these below, but, in essence, he concluded that the alteration would achieve nothing of any value and it was inappropriate for the council to proceed with an application for an alteration of the boundary when the real issues between the parties could be resolved only by the court.
[27] One of the council’s grounds of appeal (ground 8) is that, in so far as he did so, the adjudicator was wrong to apply para 6 of Schedule 4. I do not think that there is anything in this ground. I agree that this is not a para 6 case because the alteration does not prejudicially affect the Fallons’ title and, hence, it is not a case of rectification and not within para 6. Moreover, it is true that, in paras 68 to 72 of the decision, the adjudicator addressed questions that arise only under para 6. However, it seems to me clear that he did not rest his decision on this. This is the effect of para 73, which I have quoted above and where the reference to “this issue” is, as I read it, to the issue whether the alteration could be said to affect the Fallons’ title. What the adjudicator was saying was that he did not need to decide whether or not it was a rectification case because there were exceptional circumstances that justified not making the alteration. If it were a rectification case, this would satisfy para 6(3). However, assuming it was not a rectification case, the adjudicator regarded this as a reason for refusing the application.
[28] Another ground of appeal (ground 7) is that the adjudicator was wrong to apply r 126 of the 2003 Rules. I, too, reject this ground. Paragraph 5 of Schedule 4 to the 2002 Act provides that the registrar “may” alter the register, and Mr Din accepted that this conferred on the registrar a discretion in a non-rectification case: he referred me, by way of analogy, to Claridge v Tingey [1967] 1 WLR 134, at p141, where Pennycuick J held that the wording of section 82(1) of the 1925 Act (“The register may be rectified…”) was discretionary. I agree, and I further agree that r 126 has no direct application to the exercise of the registrar’s discretion under para 5 in a non-rectification case because r 126 is limited to the case in which the court is dealing with a case. However, I do not think that the adjudicator made the mistake of thinking that r 126 applied to an application to the registrar; what he was doing was looking to r 126 for guidance as to how the discretion should be exercised. Given that: (i) it is accepted that para 5 does confer a discretion on the registrar; (ii) para 7 confers a power to make rules as to how that discretion should be exercised in a non-rectification case, but no such rules have been made; (iii) para 4 confers a similar rule-making power in the case of the court exercising its discretion under para 2 in a non-rectification case; and (iv) power has been exercised in the form of r 126, I can see nothing wrong in the adjudicator, in effect, adopting the same principles as are laid down in r 126 for the court. It would certainly be surprising if the discretion under para 5, which has not been constrained by rule, were less flexible than the discretion under para 2, which has; it would also be surprising if the discretion under para 5 were so inflexible as not to permit the alteration to be refused even if the circumstances were exceptional. If anything, the adjudicator’s decision to follow r 126 might be said to err in favour of the applicant by limiting the cases in which the alteration might be refused to exceptional ones, but, if so, the council cannot complain of this.
[29] I therefore reject any suggestion that the adjudicator applied the wrong test: he was, in my judgment, perfectly entitled to take the view that if the circumstances were exceptional, he could properly refuse the application, whether it was a rectification case (under para 6(3)) or a non-rectification case (in the exercise of the general discretion conferred by para 5 and, by analogy, with r 126).
[30] This means that the appeal on this issue can succeed only if the council can show that he exercised his discretion wrongly. The test for an appellate court to disturb the exercise of a discretion is a familiar one. Although the CPR provide that the appeal court will allow an appeal where the decision of the lower court was “wrong” (see r 52.11(30(a)), the appeal court will be able to conclude that the exercise of a discretion is wrong only if the decision maker has “exceeded the generous ambit within which reasonable disagreement is possible”: see G v G [1985] 1 WLR 647, at p652. |page:49|
[31] So, it is necessary to consider what the adjudicator relied upon in concluding that the circumstances were exceptional. His reasons were as follows:
(i) The boundary shown on the filed plan was a general boundary. If it were altered it would still be a general boundary, albeit drawn in a different place. Thus, altering it would not change the ownership of the land.
(ii) Altering a general boundary therefore changes nothing, except, in the usual case, providing greater accuracy. That would have been the case had the council applied before the garage and wall were built. There would then have been no reason why the council should not have the disputed land.
(iii) However, the position changed once the Fallons had built over the land. At that stage, the question of whether the council could have had the land restored to them depended upon whether they could obtain an order excluding the Fallons from part of their garage and compelling them to pull it and the wall down. This was not a question that either the registrar or the adjudicator could answer, but one that could be answered only by the court.
(iv) The council conceded it to be arguable that the Fallons might be able to resist an injunction by reason of an estoppel or otherwise. There was, therefore, at least a seriously arguable case (and the adjudicator himself thought a very strong one) for leaving the Fallons in possession of the land they had built on and enclosed “with or without an award of damages equal to the value of that land”.
(v) In these circumstances, although the present boundary line did not reflect where the paper title lay, changing it would be “wholly unhelpful to anyone”. An application to alter it was not an appropriate way of resolving the issues between the parties (see para 81):
The Chief Land Registrar ought not to be troubled by questions of altering the general boundary before the real issues between the parties have been fully resolved and the future of the disputed land has been determined.
[32] Mr Din submitted that this analysis is flawed. He said that the whole purpose of the Land Registration Acts was to deal with the registration of title, and that the purpose of the register is to be an accurate reflection of the ownership of land. Having decided where the ownership of the land actually lay, there was no good reason why the register should not be amended to reflect that ownership more accurately. He accepted that if the council applied to the court for an order for possession, it was arguable that the Fallons might be able to defeat such a claim by relying upon a proprietary estoppel or the like; but he said that this did not affect the title and was no reason not to amend the register to reflect more accurately where the title was. He accepted that the registrar and the adjudicator could not decide on the issues of injunctive relief or possession, but said that this merely reinforced the point that all they were dealing with was title, which was a quite separate point from the question of possession on the ground. He said that to leave the register unaltered would be to perpetuate the potentially misleading nature of the filed plan, which had in fact misled the Fallons and might mislead future purchasers as to where the title lay. He also said that there was nothing exceptional about an encroachment leading to a boundary dispute: boundary disputes typically arose because the boundary was put in issue by some encroachment.
[33] I fully accept that the purpose of the Land Registration Acts is to provide for registration of title and that, in the normal course of things, it is preferable for the register to be altered so as to be more accurate even if the alteration simply consists of moving a general boundary from one position to another. In general, anyone looking at a filed plan to a registered title is likely to assume, even if the boundary is a general boundary and the plan bears the note about dotted boundaries, that the boundary is where the plan shows it to be. In the normal case, therefore, if the registrar or adjudicator has determined that the boundary is in the wrong place, it can be expected that the filed plan will be altered to show the boundary more accurately.
[34] It seems to me, however, that the critical question is whether the adjudicator was right in regarding as relevant to the exercise of his discretion the facts that he referred to, namely that there was an unresolved issue as to whether the council would be able to recover their land from the Fallons. It is trite law that the exercise of a discretion is flawed if the decision maker takes account of an irrelevant factor, but if the factor is a relevant one, the weight to be given to it is a matter for him.
[35] I have not been referred to any authority on what factors might be relevant to the exercise of the discretion to alter the register under paras 2 and 5 of Schedule 4. Mr Din very properly drew my attention to the obiter comments of Pennycuick J in Claridge, at pp141G-192A, when considering the jurisdiction to order rectification under section 82(1) of the 1925 Act, where he said:
it seems to me that there must certainly be circumstances in which it would not be just to make an order for rectification. I am not referring now to a mere matter of hardship. What I have in mind is the type of case in which the true owner, having learnt that the registered proprietor is doing work upon the land, stands by and allows him to do the work before he intervenes with an application for rectification. In an extreme case of that kind, it is, I think, abundantly clear that it would not be just to make an order for rectification.
At first blush, this seems very pertinent, but Mr Din submitted, and I agree, that the position Pennycuick J was considering is rather different from the present. In the case, he was considering, rectification would have deprived the registered proprietor of his registered title to the land in dispute, and refusing it would leave him with such a title. The outcome of the application for rectification would therefore directly affect his title. In the present case, as the adjudicator correctly identified, the alteration would not affect title at all, because the Fallons do not have either a paper or a registered title to the disputed strip.
[36] However, it seems to me that the adjudicator’s point was really this. Although he had decided that the council had a paper title to the disputed strip, the Fallons had built over it in circumstances where it was at least arguable (and, in his view, rather more than arguable) that the council would not in practice be able to recover the land if they sought to do so. As I understand it, what he contemplated was that if the council sought an injunction preventing the Fallons from continuing to trespass and requiring them to remove their garage, wall and paving so far as built over the boundary, it might be met by either of two defences, namely that: (i) there was a proprietary estoppel that prevented the council from complaining of the trespass at all; or (ii) an injunction should be refused as a matter of discretion, leaving the council to a remedy in damages. (I need not consider quite what the limits of the court’s powers might be to refuse an injunction to restrain a trespass; it was not suggested before me that the adjudicator had been wrong to regard these points as arguable.) One way or another, therefore, the council might fail in any attempt to recover the land, and the Fallons might be left in undisturbed occupation of it. The council would then have a paper title, but one that could not be enforced against the Fallons.
[37] What, then, would be the purpose of altering the register? Given that it would not actually change the title to any of the land, and that the only purpose of altering a general boundary to show it in a different place is to make the register more accurate, in what sense would it be more accurate to alter this boundary? It would then accord with the council’s paper title but not with the practical position on the ground. In effect, if the Fallons can resist any claim to recover the land by the council, the council’s paper title becomes a purely nominal or theoretical one, and the Fallons will have a de facto right to stay on the land. What is more, since an estoppel ensures for the benefit of successors, no doubt a purchaser from them would succeed to their rights. This would give the Fallons a sort of de facto title, and, so long as they remained in possession, a possessory title that, as the adjudicator said, might in due course ripen into one that barred the council’s paper title under the Limitation Acts. This is what I consider the adjudicator was referring to when he referred (in para 73 of the decision) to the “possibility, if not likelihood, that all or some of [the Fallons’ development] would remain and be effectively owned by the Fallons”. In these circumstances, moving the boundary to show the Fallons as not having any rights to the disputed land would not achieve anything useful at all: it would not |page:50| be “more accurate” except in the limited sense of according with the paper title; it would not accord with the practical reality on the ground and would, as the adjudicator said, be “wholly unhelpful” and “would not lead to greater clarity but only to confusion”.
[38] In my judgment, the adjudicator was right, or at any rate entitled, to regard these considerations as relevant to the exercise of his discretion. I therefore reject the central challenge to his decision, namely that the register is a register of title and matters that are relevant only to possession should be ignored. For the reasons that I have given, the question of whether the council are able in practice to recover the disputed strip (in whole or in part) from the Fallons, although indeed irrelevant to the paper title, can quite properly be regarded as being very relevant to the question of the de facto right to enjoy the land and, hence, to the question of whether any useful purpose is served by amending the register by substituting one general boundary for another. As Mr Martin Strutt, who appeared for the Fallons, suggested, one way of testing the point is to consider what the court would have done had the council applied in one set of proceedings for a declaration as to who had title to the disputed strip, an order for alteration of the register and an injunction effectively requiring the Fallons to restore the land to the council. If the court had refused an injunction either because of an estoppel or on the Jaggard v Sawyer basis, thereby leaving the Fallons in occupation of the land, would the court nevertheless have been bound to order alteration of the register? I agree with him that it would, in such circumstances, be at least open to the court to refuse to do so, and indeed probable that it would so refuse.
[39] That covers grounds 1 and 2 of the council’s grounds of appeal. I can deal comparatively briefly with the other grounds:
(i) In ground 3, the council say that the adjudicator was wrong to say that the issues of title are “bound up with” the question of injunctive relief. I do not think that he was wrong. What the adjudicator said is that this was so “in practical terms” (para 76). As I read this, he did not mean that the injunction had any effect upon the paper title but that it had a practical effect upon who was de facto entitled to the land. For the reasons that I have given, this seems to me to be right.
(ii) In ground 4, the council say that the adjudicator was wrong to take account of the prospects of the Fallons acquiring title to the land by adverse possession. I have already referred to this. I do not think that the adjudicator relied upon this prospect as a reason for not altering the register: the reason for not altering the register was the possibility (or, in his view, likelihood) of the Fallons already having acquired what I have called a de facto title.
(iii) In ground 5, the council say that the adjudicator was wrong to say that the application for alteration should await a decision on injunctive relief in the courts. This seems to me to be another way of putting the main point, which I have already rejected.
(iv) In ground 6, the council say that the adjudicator was wrong to conclude that the matters referred to constitute exceptional circumstances. I accept, as Mr Din submitted, that many boundary disputes are triggered only where there is an encroachment across the disputed boundary line. However, this does not seem to me to prevent the adjudicator from regarding the facts of this case as being “exceptional circumstances”. Paragraph 5 covers all instances of mistake in the register of whatever sort, as well as the other grounds for alteration referred to (bringing the register up to date, giving effect to entries excepted from the effect of registration and removing superfluous entries), and what is exceptional must be judged against the entire range of circumstances in which an alteration might be asked for. Moreover, even judged against the ordinary case of encroachment over a boundary line, the circumstances in which the council might have lost their right to recover the land can be seen as an exception to the normal case. I therefore consider that the adjudicator was fully entitled to regard a case where altering the register would only redraw the general boundary in a place that more accurately reflected the paper title but might not more accurately reflect the de facto right to the land as exceptional.
[40] That covers all the grounds of appeal. As to the point made by Mr Din in his oral submissions that leaving the filed plan uncorrected had already misled the Fallons and might mislead future purchasers, I agree with Mr Strutt that a purchaser would be likely to assume that the boundary followed the physical features on the ground (the wall and garage) and altering the filed plan (which is on the usual scale of 1:1250) would not by itself be very likely to alert a purchaser that these features were built over the boundary. (This is quite apart from the point that, in general, one would expect purchasers to make inquiries as to any disputes so one would expect that unless the position had been resolved by then, the true position would come to light on any sale.) However, in any event, it seems to me that the problem of a purchaser being potentially misled arises only because the garage and wall encroach over the boundary. The solution to the problem lies in the hands of the council, which can either seek to regularise the position by agreement with the Fallons or, if no agreement can be reached, take proceedings for recovery of the disputed strip (which, of course, may or may not succeed). If, however, they do nothing, it seems to me that they will effectively be accepting that although they have title to the disputed strip, they will not seek to enforce their title, and, in such a case, it is rather doubtful to what extent it could be said that leaving the boundary on the filed plan where it is would be misleading to purchasers.
[41] I have now dealt with the arguments advanced by the council in support of the appeal. In my judgment, for the reasons that I have given, the adjudicator’s decision cannot be impugned. I will therefore dismiss the appeal against the adjudicator’s decision not to direct the registrar to alter the register.
Appeal on costs
[42] That leaves the council’s appeal against the adjudicator’s decision on costs.
[43] The adjudicator had power to make an order in respect of costs under r 42 of the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003. This provides:
42. (1) In this rule
(a) “all the circumstances” are all the circumstances of the proceedings and include
(i) the conduct of the parties during (but not prior to) the proceedings;
(ii) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(iii) any representations made to the Adjudicator by the parties; and
(b) the conduct of the proceedings includes
(i) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(ii) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(iii) whether a party who has succeeded in his case in whole or in part exaggerated his case.
(2) The Adjudicator may, on the application of a party or of his own motion, make an order as to costs.
(3) In deciding what order as to costs (if any) to make, the Adjudicator must have regard to all the circumstances.
(4) An order as to costs may
(a) require a party to pay the whole or such part of the costs of another party and
(i) specify a fixed sum or proportion to be paid; or
(ii) specify that the costs are to be assessed by the Adjudicator if not agreed; and
(b) specify the time within which the costs are to be paid.
[44] The adjudicator said that he did not find the question of costs an easy one, but in the end concluded that the council should pay one-half of the Fallons’ costs (to be assessed on the standard basis if not agreed).
[45] The council appeal this order. Undoubtedly, Mr Din’s strongest point is that the council won on each of the issues that were agreed between the parties on the schedule of issues and fought out. Specifically, the Fallons resisted the application on the grounds that: (i) the council did not have paper title; (ii) they had a title by adverse possession; and (iii) it was a case of rectification and therefore they were entitled to the protection of para 6 of Schedule 4 to the 2002 Act. On each of these, they lost and they ultimately succeeded only on a |page:51| ground first appearing in the draft decision of the adjudicator and only then espoused by them.
[46] This is a telling point well made, and I have carefully considered whether the adjudicator was not unfair on the council in not only depriving them of any of their costs but making them pay one-half of the costs of the Fallons when they had succeeded on so many of the agreed issues in the case. However, there are two considerations that go the other way.
[47] The first is that the council were overall unsuccessful in obtaining the relief that they sought, and the adjudicator’s substantive decision meant that the Fallons were the ultimate winners. Unlike the provisions of the CPR, r 42 does not lay down any general rule that the unsuccessful party will ordinarily be ordered to pay the successful party’s costs, and for all I know this may be deliberate. However, I regard it as implicit in any discretion to make one party pay the other party’s costs that if any order for costs is made at all, the starting point will be that the loser pays the winner. This is reinforced by the specific provisions of r 42 (see r 42(1)(a)(ii) and (1)(b)(iii)), which refer to a party succeeding in its case. Moreover, I think that one can go further. Although r 42 refers to the case of a party succeeding on part of its case, I take this to refer to a case where a party has succeeded in obtaining part of the relief that it has sought, not a case where a party has established part of its case but failed to obtain any relief. Ordinarily, a party that brings a claim that wholly fails would not expect to recover any part of its costs from the successful defendant (or, in this case, objector).
[48] This simple way of looking at it is complicated in the present case because the council did succeed in establishing their paper title, and although this did not lead to any formal relief, it was common ground before me that this would give rise to an issue estoppel in the council’s favour preventing the question of paper title from being reopened in any subsequent proceedings. To this extent, the council can be said to have achieved something of potential value from the proceedings. Nevertheless, as the adjudicator said, although the decision as to paper title would assist the council, by itself it does not help it regain the land without a court order: see para 84.
[49] That brings me to the second point, which the adjudicator dealt with at some length. This was that he took the view that the real issue between the parties was who would get to keep the disputed land. As already explained, this issue could be resolved only by court proceedings in which the questions of estoppel and injunction could be resolved, and he took the view that the council should have brought court proceedings to resolve all the issues at the same time: see para 83. If they had done so, some of the costs would have been incurred in any event, but the overall costs would have been substantially less, because the evidence that he heard on the parties’ conduct and motives (relevant to the issue of exceptional circumstances) would also be relevant to any court proceedings for an injunction or estoppel. In addition, if there had been one set of proceedings, the Fallons could have protected themselves against costs by offering to purchase the disputed land: see paras 85 to 86.
[50] In the light of these considerations, the adjudicator said that he was satisfied that there should be no order for costs in favour of the council, but that it would not be right to make the council pay all the Fallons’ costs (see para 88) and, hence, that they should pay one-half of the Fallons’ costs.
[51] The question for me is whether the adjudicator erred in principle. As with the substantive appeal, this is an appeal against the exercise of a discretion and his decision can be interfered with only if it is wrong in the sense of being outside the generous ambit within which reasonable disagreement is possible. In my judgment, his decision cannot be so characterised.
[52] First, I consider that he was entitled to take the view that there should be no order in favour of the council. As I have already said, the council failed in obtaining the relief it sought. There seems to me nothing wrong in principle in such a case in the successful party, the Fallons, not being ordered to pay any part of the costs of the unsuccessful party, the council. This is so even though the Fallons lost on some of the issues on which they fought, and even though the issue on which they did ultimately succeed was one that first appeared in the draft decision and was only then espoused by them. It is also so even though Mr Strutt accepted that the paper title issue has been decided in favour of the council and is potentially helpful to the council: the adjudicator was alive to this, as I have mentioned, but, in my judgment, he was entitled to take the view that by itself this did not give the council anything of substantive value. The point can again be tested in this way. Suppose that the council had brought court proceedings seeking a declaration as to their paper title and an injunction and the court had duly found for them in respect of the paper title but refused an injunction. Would the court be bound to grant it their costs of the paper title issue? It might do so, but I cannot see that it would be bound to do so, and in circumstances where the decision on paper title was of no practical benefit to the council, I think it might very well decline to do so. In these circumstances, I do not think that the adjudicator can be said to have gone wrong in principle in taking the view that despite the council’s success on the paper title issue, the Fallons should not be required to pay any part of the council’s costs.
[53] Second, I consider that he was entitled to take the view that the council should pay some but not all of the costs of the Fallons. This reflected the fact that the Fallons had won, but not succeeded on all the issues. It also reflected the fact that the council had chosen to bring proceedings that did not resolve all the matters in dispute between the parties and would overall lead to an increase in costs. In my judgment, it was well within his discretion to take the view that, in those circumstances, the council should pay part but not all of the Fallons’ costs. Having made that decision, it is impossible to criticise the proportion of 50% that he chose: he had a far better idea of the time spent on the paper title and adverse possession issues (on which the council won) and on the exceptional circumstances issue (on which the council lost) than I have.
[54] I may add that in the council’s written submissions on costs after the adjudicator’s draft decision, the council themselves suggested that any costs awarded to the Fallons should be reduced by 50% as a means, in effect, of both denying them their costs of the paper title and adverse possession issues (estimated at 10% of their overall costs) and giving the council their costs of these issues (estimated at 40%). The council may have later changed their position on costs, but the fact that the adjudicator’s order reflected the council’s initial submission on costs does tend to support the conclusion that I have reached that it was a course that was open to him in his discretion.
[55] For the reasons that I have given, the adjudicator’s order as to costs is not shown to have involved any error of principle, and I will dismiss the appeal against it.
Appeal dismissed.
