Land registration – Procedure – Cancellation order – Land Registration Rules 2003 – Application to register title to land cancelled by registrar on order of adjudicator and removed from day list – Adjudicator not granting stay of execution – Cancellation order overturned by High Court on appeal – Order made in separate hearing for re-entry of application in day list with original priority date – Whether new application should have been required – Appeal of chief land registrar dismissed
In April 2005, the first and second respondents applied to the Land Registry to register title by adverse possession to a strip of land bordering their property. That application was duly entered on the day list. The third and fourth respondents, as the registered proprietors of the land in question, objected to the application, which was transferred to an adjudicator, under section 73(7) of the Land Registration Act 2002.
In June 2006, the adjudicator ordered the registrar to cancel the registration application on the ground of procedural defaults by the first and second respondents. No application was made or granted for a stay of execution of that order under r 45(1) of The Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003. The registrar deleted the record of the application on the day list a few days later.
The High Court granted permission to appeal against the cancellation order and, in June 2007, allowed that appeal. However, the registrar was not notified of that matter until December 2008. Meanwhile, in October 2007 and June 2008, adverse interests, namely two charges in favour of mortgagees, were registered against the title to the land. The registrar decided that the registration application could not be revived and re-entered on the day list with the same priority date of April 2005; the first and second respondents would instead have to make a new application.
The first and second respondents applied to the court to reinstate their registration application with priority from April 2005. Opposing the claim, the chief land registrar contended that this could not be done because it would damage the integrity of the day list as a “real time” record of the actual time and date the entries were made or cancelled.
Allowing the application, the judge held that where the court allowed an appeal against a cancellation order, it could order the restoration of the registration application and its re-entry on the day list with its original priority date without the need for a fresh application, provided that this was done on terms that respected the rights of intermediate incumbrancers. The judge therefore ordered the registration application to be restored but with the possibility for third parties, such as the mortgagees, to apply to vary or set aside that order: see [2010] EWHC 1650 (Ch); [2010] 3 EGLR 29; [2010] 41 EG 128.
The chief land registrar appealed, contending that the court had no jurisdiction to make a restoration order. However, he advanced no challenge to the way the judge had exercised the jurisdiction in the event that it were found to exist.
Held (Arden LJ dissenting): The appeal was dismissed.
In determining an appeal against the cancellation order, the High Court was exercising the jurisdiction of an appeal court under CPR 52, such that, by virtue of CPR 52.10(2)(a), it had the power to “affirm, set aside or vary any order or judgment made or given by the lower court”. Pursuant to that power, the court had jurisdiction to make a restoration order following a successful appeal against a cancellation order. In a case where no third-party interests were affected, that would be the correct order to make. Such an order would not affect the scheme of priority under the Land Registration Act 2002. It would achieve the “as you were” position that ought to be a proper objective of the court in disposing of the appeal and would enable the original application to be disposed of in the way that, but for the adjudicator’s error, it should have been. There was no reason in principle why a “real time” record such as the day list could not be retrospectively corrected; in practice, backdated corrections were made in exceptional circumstances to correct mistakes.
Since the court had jurisdiction to make a restoration order in a “no third party interest” case, it followed that such a jurisdiction existed also where there were third party interests, such as those of the mortgagees in the instant case. In such cases, the only question was whether the jurisdiction should be exercised and on what terms and conditions. The judge had jurisdiction to make the restoration order that he made in the instant case. Whether he should have exercised it in the way that he had was a matter for his discretion and the appellant had advanced no challenge in that regard. His appeal therefore failed.
Timothy Morshead (instructed by the Treasury Solicitor) appeared for the appellant; Daniel Gatty and Philip Fellows (appearing pro bono) appeared for the first and second respondents; the third and fourth respondents did not appear and were not represented.
Sally Dobson, barrister
