INTRODUCTION
1. In these proceedings the claimants seek rectification and alteration of the proprietorship and charges register maintained by Her Majesty’s Land Registry under title number CH387838 in respect of a property known as and situate at
2. Before turning to the facts I record that at the close of the hearing before me an application was made on behalf of the claimant for permission to amend the particulars of claim in the following ways:
a. Paragraph 15 so as to add the words “and or alteration” after “rectification” in line 1;
b. Paragraph 17 so as to add the words “non est factum and or” before the words “undue influence” in lines 1 and 2; and
c. Paragraph 18 so as to make the same amendment as that to paragraph 17.
These applications were made in order to meet a submission made on behalf of Mr and Mrs Deacon that elements of the claim as advanced by counsel for the claimant were to be rejected on the basis that they had not been pleaded. The application for permission to amend was not in the end opposed.
THE FACTS
3. The facts are not in dispute between the parties who appeared at trial, who were as I have said, the claimant and Mr and Mrs Deacon. The claimant is an unmarried man now aged 85 who suffers from early stage dementia – see paragraph 16.1 of the report dated 15 July 2010 from Dr S K Ghosh, a Consultant Psychiatrist whose qualifications and experienced are summarised in paragraphs 1.1 to 1.6 of that report. The clamant is a retired farm labourer who left school at the age of 14 without any qualifications. It is now common ground between the parties before me, and in any event I find, that at all material times the claimant has suffered from a learning disability which means that he has a WAIS III UK IQ score of less than 70. This means in practical terms that he struggles to understand or answer simple questions –
see the final paragraph of the report of Mr Alan Hill, Chartered Clinical Psychologist dated 12 July 2010, bundle 1 page 177. In consequence, as Dr Ghosh puts it in paragraph 5.2 of his supplemental report dated 30 July 2010, the claimant “…. could not have the mental capacity to understand and make decisions on relevant financial and legal matters, including the documents he signed in 1995, due to his learning disability/mental retardation resulting in cognitive impairment at that time.”
4. The claimant has lived at the property continuously since he was ten years old, first with his parents and sister and then after his mother died with his father. On 1 June 1982 the claimant inherited the property following the death of his father. The property was not formally vested in the claimant until 10 November 1992. The claimant’s sister joined the claimant at the property in the early 1990s. At that time the claimant’s sister introduced the claimant to a man called Mr Ian Golding. The claimant’s sister was at that time apparently in financial difficulty and accordingly the claimant agreed with his sister that he would enter into a loan agreement in his name and that they would divide what was borrowed equally between them.
5. In 1992 it would appear that the claimant executed a mortgage over the property in favour of Mr Golding’s wife, although the claimant says in relation to this at paragraph 13 of his statement:
“At no stage did I ever intend to sign anything involving my house, although apparently I did so, and now know that there was a mortgage to Mr Golding’s wife although I never met her and knew nothing of her. I now know generally what a mortgage is but I did not understand what was happening at the time.”
A little later at paragraph 14 of his statement he says:
“I do agree that I did seek to take out a loan for £12,500 as I recall. I understood that I would have to sign documents for that and so was not surprised that I would have to sign documents. I clearly understood that anything signed was for that loan. I trusted Mr Golding and had no reason not to. I was not able to read and understand the documents.”
6. A further loan was arranged with Mr Golding in or about 1995. It is in relation to those documents that the opinion of Dr Ghosh I referred to above was expressed. The claimant was asked to sign further documents, as I have implied. One such document was a form TR1 by which the claimant purportedly transferred the property to Mr Wood, the first defendant, for a consideration that was said to be £54,000.
7. It is common ground between the parties before me, and in any event I find, that the claimant did not receive the sum of £54,000 and that, whilst he recalls signing a document, he did not understand that he was transferring his home to anyone. The claimant never met Mr Wood. Mr Wood’s evidence as set out in his witness statement says that he, that is Mr Wood, was in financial difficulty at the time and was approached by Mr Golding with a proposal whereby in return for £1,000 Mr Wood would lend his name to a transaction which involved obtaining a mortgage over the property. Mr Wood says at paragraph 10 to 17 of his statement,
“10. I think that I had to provide identification to Ian Golding and I did so. I do not recall ever being sent any documents or letters whether by solicitors or anyone else.
11. A mortgage was obtained. As I understand it, however, I was told that all I needed to do was to go to a solicitor’s office which was in Altrincham and sign documents.
12. On whatever date was arranged I met Ian Golding on a car park in Altrincham. I had with me my identification documents. Ian Golding gave me the £1,000 agreed.
13. We went to a solicitor’s office nearby. Ian Golding had with him three or four canvas bags which I knew contained money. I cannot recall whether I saw that or he told me.
14. We went in to see a female solicitor. I cannot remember details but I would say she was older rather than young. We were with the solicitor for about ten to fifteen minutes as I recall.
15. I signed the documents which I was asked to. Exactly what they were I did not know but I signed what I needed to and did not query anything. I was very uncomfortable about being there and signing the documents. I was keen to get out.
16. Ian Golding stayed in with the solicitor after I left. I knew nothing more.
17. I now understand I became the … legal owner of a house in Sandbach. I never saw the house. I know nothing at all about any later sale. I have not received any more than £1,000 from Mr Golding or anyone else. That money was paid to me in cash as set out above.”
8. In summary, therefore, the claimant signed what was in fact a transfer of the property to Mr Wood believing it to be documentation relating to an unsecured loan. It is pleaded that in consequence of the facts as I have outlined them the transfer was not binding on the claimant and was void, relying on the non est factum doctrine. That this is correct is not disputed by Mr and Mrs Deacon. In the light of the unchallenged evidence, this concession is understandable and perhaps inevitable and more relevant for present purposes, it is plainly an appropriate concession. The unchallenged facts plainly satisfy the criteria identified by the House of Lords in Saunders v Anglo Building Society [1970] 3WLR 1078 and that is so notwithstanding the heavy burden that rests on one who alleges non est factum.
9. The remaining facts relevant to the dispute are a matter of record or largely so. On 9 June 1995 Mr Wood became the registered proprietor of the property on an application made in his name for first registration. At or about the same time, there was also registered a legal charge in favour of City Bank International PLC.
10. On or about 1 April 2001 a shorthold tenancy agreement was apparently signed by Mr Wood and the claimant. There is no mention in Mr Wood’s statement of the tenancy but at paragraph 19 in his statement Mr Wood says:
“Mr Golding rang me on a couple of occasions sometime later. I did not see him again. I believe that he wanted to know if I would chase up the housing benefit that was due. As I understand it the clamant was described as a tenant. I believe from my understanding arising from the conversation that Mr Proudlove would receive housing benefit to pay to Mr Golding and Mr Golding would collect money from Mr Proudlove to service the mortgage.”
The claimant does not dispute that he signed the document. No point is taken by Mr and Mrs Deacon about this document and I need say no more about it.
11. On 30 May 2003 Mr Wood purported to transfer the property to Mr and
12. On 10 September 2003 Mr and
13. It is common ground between the parties that at all material times the claimant lived in the property and that Mr and Mrs Deacon had no dealings with the property at any stage prior to them being introduced to it on behalf of Interland (UK) Limited. It is also common ground that at no stage did they or their solicitors make any enquiries of the claimant concerning his status or interest in the property. For that matter it would appear that no enquiries of any sort have ever been made of the claimant concerning his interest in the property by anyone. The property was transferred to Mr and Mrs Deacon on 28 March 2007.
14. On 27 September 2007 Mr and Mrs Deacon applied to the Land Registry to be registered as joint proprietors of the property and for registration of the charge in favour of Manchester Building Society. An objection was lodged by or on behalf of the claimant and the issue thus arising was referred for adjudication pursuant to section 73(7) of the Land Registration Act 2002. That reference was heard by Mr Owen Rhys, sitting as a Deputy Adjudicator on 20 January 2009. By then these proceedings had been started and an earlier application to the Adjudicator, not I think Mr Rhys, to adjourn the adjudication pending the outcome of these proceedings had been refused. What then happened is described by the Deputy Adjudicator in his determination in these terms:
“At that point the applicant indicated that he would consent to the respondent’s application but only on terms that he reserved the right to argue in the High Court that he should be registered as proprietor in place of the Deacons. On that footing he did not attend the hearing before me and he was not represented. His solicitors candidly accepted in correspondence that there were no funds available to instruct them in
this jurisdiction, public funding not being available. The case came before me on that basis.”
As the Deputy Adjudicator observed, the consequence of Mr and Mrs Deacon being registered would be, first, that they would have to be joined as defendants at these proceedings and, secondly, if rectification was ordered then it would be they who would be entitled to claim compensation from the Land Registry pursuant to schedule 8 of the 2002 Act. he adjudicator then said this at paragraphs 8 to 9 of the award:
“In reaching a solution to the unusual situation that has arisen I am concerned that I should not in any way pre-empt or otherwise prejudice the claimants and the applicant which are being pursued in the parallel proceedings. I have no idea whether he can prove his case on the facts or on the law but manifestly he is entitled to the opportunity to try. On the other hand, he has consented to the application and on the face of it the respondents are entitled to be registered for the reasons given by Mr Clark. This is what I propose to do. I shall direct the Chief Land Registrar to give effect to the respondent’s application dated 25 September 2007. This is on the basis that such an order does not purport to resolve any of the factual or legal issues raised by the applicant in this reference or in the High Court proceedings which must now be resolved in those other proceedings. The respondents accept, as I have said, that their registration would necessarily be subject to the applicant’s overriding interest if he can establish it, and that their registration in no way affects his claim to rectification of the register.”
15. The result of this is recorded in the current edition of the register for the property. In the proprietorship register Mr and Mrs Deacon have been registered with title absolute with effect from 25 September 2007 and Manchester Building Society have been registered from the same date in the charges register as first registered chargee. The adjudicator’s concerns about preserving the position of the claimant were addressed by a notice set out in the charges register which is to the following effect:
“(03.02.2009) Pending land action in respect of proceedings entitled Proudlove v Brian and April Woods and other in the High Court of Justice, Birmingham District Registry under claim number 8BM30575, this notice is entered in the register pursuant to an order of the adjudicator to HM Land Registry dated 23 January 2009 under Rule 41.2 of the adjudicator to HM Land Registry (Practice and Procedure) Rules 2003.”
THE PARTIES’ RESPECTIVE POSITIONS
16. In summary the claimant’s position is that as a result of the events that happened in 1995 he has and has had at all material times a right which was described by his counsel as being “a mere equity” to be registered as proprietor of the property free of all charges and that the register should be rectified in consequence so that what he characterises as the mistake by which Mr and Mrs Deacon came to be registered is corrected by substituting his name for theirs in the proprietorship register and also by raising the registration of Manchester Building Society’s first charge over the property. The claimant maintains that his alleged equity is one which in the
circumstances is an overriding interest because he has at all material times been in occupation of the property and no enquiries of any sort have been made of him by or on behalf of Mr and Mrs Deacon or any registered predecessor of theirs.
17. Mr and Mrs Deacon accept that if the claimant has the equity alleged it was and is an overriding interest for the reasons given by the claimant. However, they dispute that he has an equity that entitles him to an amendment of the register which they maintain in its current form contains no mistake because it is alleged that the Deacons were entitled to be registered as proprietors because they are the transferees of the previously registered proprietors, namely Mr and Mrs Street. This narrow construction of the word “mistake” is an approach said to be supported by a dictum of Sir Donald Rattee in Odogwu v Vastguide Limited & Others, [2008] EWHC 3565 (Ch).
THE LEGAL FRAMEWORK
18. The relevant statutory provisions are all contained in the Land Registration Act 2002 as amended. One of the underlying purposes of land registration is to simplify the conveyancing process by limiting the need to deduce title. This is achieved by, amongst other provisions, sections 24 and section 58 of the 2002 Act. Section 24 provides:
“Right to exercise owner’s powers
A person is entitled to exercise owner’s powers in relation to a registered estate or charge if he is –
(a) the registered propriety; or
(b) entitled to be registered as the proprietor.”
The “owner’s powers” there referred to are defined in section 23(1) of the Act and include the power to make a disposition of any lawful kind.
By section 58 of the 2002 Act: “Conclusiveness
(1) If, on the entry of a person in the register as the proprietor of a legal estate the legal estate could not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration.”
In relation to “mere equities” section 116 of the 2002 Act provides that
“It is hereby declared for the avoidance of doubt that in relation to registered land each of the following ….
(b) a mere equity,
has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority).”
Generally such rights, unless registered, would be defeated by a transfer by one registered proprietor to another – see section 29(1) of the 2002 Act. However, an unregistered interest of this sort is capable of overriding a registered disposition where the beneficiary of the interest concerned is in actual occupation of the property concerned, providing that the requirements of Schedule 3 paragraph 2 of the 2002 Act are satisfied – See section 29(2)(a)(ii) of the 2002 Act. Insofar as is material, Schedule 3 paragraph 2 of the 2006 Act provides:
“Unregistered interests which override registered dispositions
Interests of persons in actual occupation
An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation ….”
Rectification and alteration of the register is governed by section 65 and schedule 4 to the 2002 Act. Section 65 provides simply that Schedule 4 shall have effect. Insofar as is material, schedule 4 provides:
“Alteration of the register
Introductory
1 In the 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 proprietary. Alteration pursuant to court order
2 (1) The court may make an order for alteration of the register for the purposes of –
(a)
correcting a mistake;
bringing the register up to date; ….
This paragraph applies to a power under paragraph 2, so far as relating to rectification
(2) If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor’s consent in relation to land in his possession unless –
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake; or
(b) 3 (1)
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify it not doing so….”
It is common ground between the parties before me that paragraph 3(2) is of no application here because Mr and Mrs Deacon have not at any stage entered into occupation of the property.
19. As will be apparent from the summary set out above, these provisions beg the question of what is to be regarded as “the register” and what is to be regarded as “a mistake” for present purposes. As to the first of these points there is no definition provision within the Act which is at all helpful for present purposes. However, both issues were considered by Sir Donald Rattee in Odogwu v Vastguide Limited (ante) albeit obiter. I explore hereafter the reasons why what he says is to be regarded as obiter. This case is heavily relied upon by the defendants and it is therefore necessary that I analyse it in a little more detail than might otherwise be usual.
20. The facts of that case are summarised by Sir Donald at paragraphs 1 to 2 of his judgment in these terms:
“1. The claimant, Chief Odogwu, lives in
2. The primary purpose of these proceedings is for the Claimant to obtain rectification of the register to delete the entry of Vastguide as proprietor and thereby restore his proprietorship. The application for such rectification is made under Section 65 of and Schedule 4 to the Land Registration Act 2002. It is opposed by Vastguide.”
At paragraph 16 of the judgment the Judge records a submission by Vastguide that:
“According to Vastguide’s submission, the registration of it as proprietor of Victoria Rise cannot be said to be a mistake in the register, because it correctly recognised the effect of section 58(1) of the Act that, despite the fact that the charge of Victoria Rise to Credit & Mercantile was a forgery, the registration of that company as proprietor of the charge gave it all the powers of such a proprietor, including the power to sell to Vastguide. Therefore the transfer to Vastguide is to be deemed to be valid, and its registration no mistake.”
The Judge rehearses a concession made by Vastguide’s solicitors at paragraph 43 of the judgment in these terms:
“On 2 November 2007 the Chief Land Registrar filed a defence to the Claimant’s claim in which he conceded that, ‘if the Claimant establishes the fact and matters relied on,’ the court would have jurisdiction to rectify the register as against both Vastguide and the second defendant. On the 7 January 2008 Vastguide’s solicitors wrote to the Treasure Solicitor, on behalf of the Chief Land Registrar, in which (inter alia) they said this:
‘We refer to our telephone conversation today …. when we indicated to you that, because of the Chief Land Registrar’s indications that:
1. The court has jurisdiction to rectify the Register on the facts being assumed in the preliminary issue …..
2. The relevant passages in Ruoff & Roper, which supported our client’s position are incorrect because they take too narrow a view and do not reflect a correct interpretation of the statute,
the First Defendant is prepared to accept that the principles that the Court has jurisdiction in this case to rectify the Registrar and, in the circumstances, that the trial of the preliminary issue need not proceed. ….”
In relation to this concession Sir Donald said at paragraph 46:
“In my judgment there can be no doubt that the intention of Vastguide by its agreement recited in that order was to dispose of the argument that had been raised by Vastguide to the effect that the court had no jurisdiction to rectify the register by removing the entry of Vastguide as proprietor because that entry was not a mistake within the meaning of Schedule 4 to the Act. That was the only issue that had been raised by Vastguide on jurisdiction and therefore the only reason for the formulation of and order for the trial of a preliminary issue between the Claimant and Vastguide. This finding is material to the question of estoppel that was argued before me.”
Having refused to permit Vastguide to go back on the concession, the Judge then this at paragraphs 55 to 57 of his judgment, these being the paragraphs primarily relied upon by Mr and Mrs Deacon in these proceedings:
“However, in case I am wrong in this conclusion, I will proceed to consider Vastguide’s new argument, namely that the court has jurisdiction to remove the entry of Vastguide on the register on the ground that such removal would constitute the correction of the consequences of the previous mistake consisting of the registration of the Credit & Mercantile charge.
56. The relevant jurisdiction of the court is that conferred by paragraph 2(1)(a) of Schedule 4 to the Act, namely ‘to make an order for alteration of the register for the purpose of correcting a mistake.’ In my judgment the reference in that quotation from paragraph 2(1) to a mistake must be to a mistake on the register, so that it can be corrected by an alteration of the register. I accept the submission of counsel for the Claimant that a fundamental objection to Vastguide’s argument is that the Credit & Mercantile charge, which Vastguide argues is the relevant mistake, is no longer on the register. It was deleted on completion of the sale to Vastguide when Credit & Mercantile was paid its debt.
57. Counsel for Vastguide sought to overcome this initial obstacle by submitting that, for this purpose, the register is not limited to the current edition of the register showing currently effective entries, which admittedly does not show the charge, but extends to the records still held by the Land Registry showing all previous entries, including those since deleted. I find this argument misconceived. In my judgment the reference in paragraph 2 of schedule 4 to the Act to a mistake is to a mistake appearing on the current edition of the register which shows subsisting entries. Only such a conclusion makes sense in the context of the jurisdiction in paragraph 2 to alter the register for the purpose of correcting a mistake. I cannot see what purpose would be served by making an alteration to a previous edition of the register to remove an entry such as the Credit & Mercantile charge which has already been deleted.”
At paragraph 58 the Judge then turned to the subsidiary question that he had earlier identified which he dealt with in these terms:
“….. quite apart from this point it does not seem to me obvious that the reference to ‘correcting a mistake’ in paragraph 2(1)(a) of Schedule 4 to the Act can properly be construed as including a reference to correcting the consequences of the mistake, which is the next step in Vastguide’s argument. However, counsel for Vastguide relied in this context on a recent decision of a Land Registry Adjudicator in Ajibade v. Bank of Scotland plc in the course of which the Adjudicator seems to have taken the view that the correction of a mistake by rectification of the register could extend beyond the correction of an entry on the register to include the correction of the consequences of such a mistake. As it is not necessary for me to decide this point in this case in the light of my rejection of Vastguide’s argument on the ground that the Credit & Mercantile charge has already been deleted from the register (a point that did not arise in the Ajibade case), I do not think it appropriate that I express any conclusion on it.”
21. Although Mr and Mrs Deacon rely heavily on this analysis as supporting their case for reasons that I come to later, I regard that reliance as misplaced. Aside from the point so far considered, the claimant sought to rely upon paragraph 2(1)(b) as well as paragraph 2(1)(a) of Schedule 3. In support of that submission the claimant relies on paragraph 46.010 from Ruoff & Roper, Law and Practice of Registered Conveyancing, where it is said that paragraph 2(1)(b) will apply
“….where the court determines the register no longer reflects the true state of the registered title. The court may determine, for instance, that the estate is subject to some unregistered interest which is not recorded by entry on the register. An example would be where the court determined that the estate was bound by legal easements arising by prescription on applied ground(?) which will otherwise override a registered disposition of the estate….. Where the court ordered rescission of avoidable registered disposition of a registered estate, it would alter the register by restoring the name of the deponent as proprietor of the registered estate instead of the disponee…..”
22. An effect of alteration on this ground is that it does not amount to rectification – see in this regard Schedule 4 paragraph 1. The result of an alteration, therefore, would be to preclude the recovery of compensation under schedule 8 which limits recovery to cases where loss results from rectification. In the context of this case that engages a human rights issue arising under Article 1 of the First Protocol to the European Convention on Human Rights. However, given that it is common ground that the transfer to Mr Wood was void not merely voidable, I do not consider that paragraph 2(1)(b) is at all relevant for present purposes. Either the claimant had an overriding interest at the date when Mr and Mrs Deacon were registered as proprietors or possibly when Mr and
DISCUSSION
23. The result of my conclusions and of Mr and Mrs Deacon’s concessions that the claimant was entitled to rely upon the non est factum doctrine in relation to the transfer to Mr Woods is that that transfer is void. In consequence it was not effective to convey any part of his interest in the property to Mr Wood. A void transfer or conveyance should produce no legal effect whatsoever. Aside from the effect sometimes called the “magic” of registration, anyone whose route of title started with Mr Wood would get no title. There is no doubt that the claimant would have been entitled to rectification as against Mr Wood while he was registered as proprietor. The real question, therefore, is whether the transfer from Mr Wood to Mr and
(a) whether given the statutory material to which I have referred it is open to the claimant to contend that the registration of Mr and Mrs Deacon was a “mistake;”
(b) whether if the answer to (a) is no nonetheless it is open to the claimant to contend that the register should be rectified in the ways he contends for in order to
correct the effects of a mistake other than a mistake concerning the registration of Mr and Mrs Deacon or Mr and
(c) whether the outcome in relation to either of these issues is affected by the fact that the claimant was in actual occupation at all material times so that such interest that he had was protected at all material times as an overriding interest.
24. The defendants submit that the first of these issues must be resolved in favour of Mr and Mrs Deacon applying the analysis of Sir Donald Rattee at paragraphs 55 to 57 of his judgment in the Vastguide case. I am not able to agree. It is necessary to understand the background that led Sir Donald to say what he did. As is apparent from paragraph 43 of the judgment, the Chief Land Registrar had conceded that if the claimant established as fact that his signature had been forged on the charge to Credit and Mercantile then the court would have jurisdiction to rectify the register as against Vastguide who derived title from Credit and Mercantile and the second defendant in those proceedings, a finance company to which Vastguide had subsequently charged the property. It was on that basis that Vastguide conceded the jurisdiction of the court. That jurisdiction could only be by reference to Schedule 4 paragraph 2 and on the basis that rectification was necessary in order to correct a mistake – see paragraph 46 of the judgment.
25. Vastguide’s submission was that the court had jurisdiction not because of a mistake in relation to the entry on the register of Vastguide but because of a mistake in relation to the entry of Credit and Mercantile and that the court had jurisdiction to correct not only a mistake but the consequences of such mistake – see paragraph 50 of the judgment.
26. The motive for this contrived argument is set out in paragraph 51 of Sir Donald’s judgment. It was this submission that Sir Donald characterised as “unattractive and unconvincing” and which he rejected in the paragraphs of the judgment relied upon by Mr and Mrs Deacon. Thus the real issue to be derived from the Vastguide case as it applies to the present case is whether the concession made in that case, that is that the court had jurisdiction by operation of Schedule 4 paragraph 2 to rectify as a mistake an entry on the register that could be justified only by reference to a transfer by a disponee whose title was void. As to that my conclusion is that the concession was properly made. That approach is consistent with that adopted by Blackburne J in Pinto v Lim [2005] EWHC 630 (Ch) where there was no suggestion that the fact the original fraudster was no longer on the register made any difference at all. It is also consistent with the conclusions of the Court of Appeal in Argyll Building Society v
27. Whilst these decisions are in respect of the rectification provisions contained in the 1925 Act, there is nothing in the 2002 Act that suggests that “mistake” is limited to any particular kind of mistake, as long as it is a mistake in the registration of the title or a charge in the name of the particular proprietor. In any event, whatever the proper position might have been in relation to disponees subsequent to Mr Wood had there been no actual occupation (about which it is not necessary for me to express a view) here the claimant was indisputably in actual occupation at all material times. In consequence the claimant’s interest affecting the estate was an overriding interest at every stage because it was an interest belonging to a person in actual occupation at the
time of each disposition and thus falls within the exception to the effect of section 29(1) of the 2002 Act contained in section 29(2)(a)(ii) of the 2002 Act. Analysed in this way it is not necessary to express any view on the issue referred to by Sir Donald Rattee at paragraph 58 of his judgment in the Vastguide case.
28. So, returning to the questions I identified earlier in this judgment, I conclude that the answer to the first of these issues is affirmative in the particular circumstances of this case because the transfer to Mr Wood was void and the claimant’s interest was an overriding interest at every stage and against every disponee. I express, as I have said, no concluded view as to what the position would have been had this last point not been the case. In consequence of my conclusions in relation to the first issue, the second question does not arise and thus I express no view in relation to it. The answer to the third question is contained in the answer I have formulated to the first. Thus, I am satisfied that I have jurisdiction to rectify the register.
29. There is, however, a second question which is whether in the exercise of the discretion I thus have I should rectify the register. In my judgment I should; indeed, the contrary is not seriously argued. The claimant is 85 years old, in poor physical and mental health. He has lived at the property since he was ten years old and was deprived of his title to the property in the circumstances that I have described. The defendants own another property. They have never been in possession of the property and will receive compensation based on the price paid in 2007 by operation of Schedule 8 to the 2002 Act. Similarly, Manchester Building Society will be compensated. In my judgment, once jurisdiction is established, as in my judgment is has been, the case for exercising discretion in favour of the claimant is overwhelming and I so conclude.
