The Land Registration Act 2002 created an independent adjudicator who is responsible for dealing with disputed land registration applications. Although a degree of flexibility is permitted, hearings are usually conducted in a manner that is similar to litigation in the civil courts.
However, the procedural rules that govern the practice and procedure to be followed in proceedings before the adjudicator differ from the Civil Procedure Rules (CPR) in an important respect. They do not contain any provision that deals expressly with the right of a party to withdraw or discontinue the proceedings before the adjudicator. They also omit to state how the adjudicator should proceed in any such case.
By contrast, the CPR enable the courts to control the parties’ ability to discontinue a case and issue a new set of proceedings advancing the same or a similar claim. The rules are designed to prevent claimants from abusing the court process and harassing defendants by repeated claims.
The question raised in Silkstone v Tatnall [2011] EWCA Civ 801; [2011] PLSCS 182 was whether a party is entitled to deprive the adjudicator of jurisdiction at any stage in the process by withdrawing a case from him, while retaining the right to reassert its claim in future proceedings. The adjudicator decided that he had the power to decide whether to allow a party to withdraw – but refused to discontinue the proceedings before him on the ground that the litigation needed to be brought to a conclusion.
The High Court went further still. It ruled that the adjudicator’s jurisdiction continued. His function was to determine the proceedings before him and he did not have the power to abandon them.
The Court of Appeal preferred the adjudicator’s approach. It ruled that his role is far from supine. Consequently, neither party can unilaterally end a case before the adjudicator. Equally, neither party can be compelled to advance a case it wants to abandon. If a party wants to withdraw, the adjudicator must decide what should be done next.
It may be appropriate, particularly at the early stage of a reference, to permit the withdrawal and make an order dealing with costs. If the order does not say anything more than this, the claim might subsequently be revived. A different approach may be required in other cases, particularly when a reference is significantly advanced. It may still be appropriate for the adjudicator to end the proceedings. However, he may consider it just to make orders for the payment of costs and, importantly, directing the Land Registry to reject any future applications of a specified kind from the withdrawing party. In other cases, it may be appropriate for the adjudicator to proceed and rule on the merits of the case.
Interestingly, the court also expressed the opinion that there is nothing to prevent an objector from applying to withdraw a notice from a registered title during the course of a reference to the adjudicator in order to remove the blight and reduce the possibility of claim for damages under section 77 of the 2002 Act. However, the proceedings before the adjudicator will still remain alive until he has disposed of them.
Allyson Colby is a property law consultant
