ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Briggs
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE RIMER
| THE CHIEF LAND REGISTRAR
|- and -
|(1) ALEXANDER RICHARD FRANKS
(2) IRENE KATHLEEN ELIZABETH FRANKS
(3) ROY ANTHONY BEDWARD
(4) ANGELA JUNE BEDWARD
Mr Daniel Gatty and Mr Philip Fellows (appearing Pro Bono) for the First and Second Respondents, Mr and Mrs Franks
The Third and Fourth Respondents, Mr and Mrs Bedward were not represented
Hearing date: 23 March 2011
Crown Copyright ©
Lord Justice Rimer :
'Any entry in, removal of an entry from or alteration of the register pursuant to an application under the Act or these rules has effect from the time of the making of the application.'
Any rectification of the register of Title No BK361792 giving effect to the Franks' application would, when made, thus take effect from 18 April 2005.
'… the cancelled application can be in any way revived and re-entered on the Day List with the same original priority date (assumed to be 18th April 2005) so that the Adjudicator could make a further substantive order on it or whether you consider Mr and Mrs Franks will need to make a fresh application.'
The registrar's response on 9 January 2009 was that:
'It is not possible to revive an old application once it has been cancelled. It appears that the applicant should make another application to the Land Registry if the matter is to be revived.'
'12. – (1) The registrar must keep a record (known as the day list) showing the date and time at which every pending application under the Act or these rules was made and of every application for an official search with priority under rule 147.
(2) The entry of notice of an application for an official search with priority must remain on the day list until the priority period conferred by the entry has ceased to have effect.
(3) Where the registrar proposes to alter the register without having received an application he must enter his proposal on the day list and, when so entered, the proposal will have the same effect for the purposes of rules 15 and 20 as if it were an application to the registrar made at the date and time of its entry.
(4) In this rule the term "pending application" does not include an application within Part 13, other than an application that the registrar designate a document an exempt information document under rule 136.'
'(1) For the purposes of this section, an application for an entry in the register is protected if –
(a) it is one to which a priority period relates, and
(b) it is made before the end of that period.
(2) Where an application for an entry in the register is protected, any entry made in the register during the priority period relating to the application is postponed to any entry made in pursuance of it.
(3) Subsection (2) does not apply if –
(a) the earlier entry was made in pursuance of a protected application, and
(b) the priority period relating to that application ranks ahead of the one relating to the application of the other entry….'
'Substantive orders on a reference that include requirements on the registrar
41. –(1) Where the adjudicator has made a substantive decision on a reference, the substantive order giving effect to that substantive decision may include a requirement on the registrar to –
(a) give effect to the original application in whole or in part as the objection to that original application had not been made; or
(b) cancel the original application in whole or in part.
(2) A requirement on the registrar under this rule may include –
(a) a condition that a specified entry be made on the register of any title affected; or
(b) a requirement to reject any future application of a specified kind by a named party to the proceedings –
(i) unconditionally; or
(ii) unless that party satisfies specified conditions.'
The judge's judgment
'46. … I readily accept that, where an intermediate incumbrancer would be prejudiced by the restoration of a cancelled application, then this would be the most powerful reason why, as a matter of discretion, the court would not direct its restoration by way of appeal, all the more so if compensation to the intermediate incumbrancer under the statutory scheme was, as it appears to be, unavailable. It follows that if, on appeal, the court is aware that there exists such an intermediate incumbrancer, then it would not ordinarily direct the restoration of the application and its re-entry in the day list with its original priority, otherwise than on terms which required the successful appellant fully to respect the intermediate incumbrancer's rights. If, on the hearing of the appeal, the court did not have the requisite information available, then there is no reason why the appeal could not be adjourned. …
47. In a case in which there were intermediate incumbrancers who would be unfairly prejudiced by the making of an order for restoration of the application with its original priority, the court may have no alternative than to require the applicant to make a fresh application, and to direct that steps taken in the cancelled application be treated as steps in the new application, so as to save the incurring of unnecessary work and cost. Such a case would arise if, for example, the prejudice which would otherwise be caused to an intermediate incumbrancer could not be remedied by any form of conditional order, or where the appellant was unwilling to comply with the terms of any proposed conditions.
48. I do not pretend that any of the alternatives which I have outlined above represent a simple, easy, neat or necessarily cost-effective solution to the problems thrown up by a successful appeal against a cancellation order, not protected by a stay, The obvious solution to these difficulties is for the rules and practice relating to stay pending appeal to be reviewed, so as to make a stay more readily available as the sensible precaution against the difficulties revealed by these proceedings. …'
'52. This is a case in which it would neither be just to the Franks to require them to make a new application (even with a provision that steps taken in the original application stand as steps in the new application) nor, necessarily, just to the two intermediate incumbrancers simply to make an order for the re-entry of the registration application in the day list with priority from its original entry date of 18th April 2005. The first alternative would forever deprive the Franks of the availability of the right to treat their adverse possession claim as a transitional overriding interest. The second alternative may unfairly prejudice the two chargees.
53. The court knows nothing about the precise nature of the rights of the two chargees, still less whether restoration of the Franks' application would cause real rather than merely theoretical prejudice. The adverse possession claim is for a modest part of the Bedwards' property, and it may well be that the value of the chargees' security rights may be more likely to be increased by a final determination of this long-running boundary dispute, than decreased by the abstraction of some small part of the property from the land comprised with their security.
54. In those circumstances the choice lies between making an order for the re-entry in the day list of the Franks' registration application with its original entry date, with liberty to the two chargees to apply to vary or set it aside, and a yet further adjournment of this long-running appeal to ascertain, if possible, the chargees' views.
55. I prefer the first of those alternatives. It may well be that the chargees will, on inquiry, have no objection at all. Alternatively, if they do, the Franks may be able to provide satisfactory undertakings which preserve the chargees' rights. Either of those outcomes would save the costs and delay of a further hearing.
56. I am satisfied that it would be wrong to require the Franks to make a fresh application now, unless compelled to that conclusion as the only way of avoiding irreparable prejudice to the chargees. That would deprive the Franks of the benefit of a transitional overriding interest, through no fault of their own. That would merely provide a windfall benefit to the Bedwards, as the consequence of the Adjudicator's order which, as I concluded on appeal, should not have been made.
57. I will hear submissions on an appropriate form of order. It will need to include liberty to apply, not only to the two chargees, but also to any third party aggrieved by the order, and for the Registrar to be directed to notify any person appearing to be potentially prejudiced, as appears from the state of the Register and the day list on the day when he makes the re-entry.'
As I have said, no application was made by anyone to vary or discharge the judge's order.
Lord Justice Toulson :
"Any entry in, removal from or alteration of the register pursuant to an application under the Act or these rules has effect from the making of the application."
Lady Justice Arden :
"registration is itself sufficient to protect a person's interest in land fully, without the need for that person to make further efforts to protect his interest."
"148 Entry on day list of application for official search with priority
(1) An application for an official search with priority is to be taken as having been made on the date and at the time of the day notice of it is entered on the day list.
(2) Paragraph (3) has effect where—
(a) an application for an official search is in order, and
(b) the applicant has not withdrawn the official search.
(3) Subject to paragraph (4), the entry on the day list of notice of an application for an official search with priority confers a priority period on an application for an entry in the register in respect of the protectable disposition to which the official search relates.
(4) Paragraph (3) does not apply if the application for an official search with priority is cancelled subsequently because it is not in order."
"15 Time at which applications are taken to be made
(1) An application received on a business day is to be taken as made at the earlier of—
(a) the time of the day that notice of it is entered in the day list, or
(i) midnight marking the end of the day it was received if the application was received before 12 noon, or
(ii) midnight marking the end of the next business day after the day it was received if the application was received at or after 12 noon.
(2) An application received on a day which is not a business day is to be taken as made at the earlier of—
(a) the time of [the] day that notice of it is entered in the day list, or
(b) midnight marking the end of the next business day after the day it was received.
(3) In this rule an application is received when it is delivered—
(a) to the designated proper office in accordance with an order under section 100(3) of the Act, or
(b) to the registrar in accordance with a written arrangement as to delivery made between the registrar and the applicant or between the registrar and the applicant's conveyancer, or
(c) to the registrar under the provisions of any relevant notice given under Schedule 2.
(4) This rule does not apply to applications under Part 13, other than an application that the registrar designate a document an exempt information document under rule 136."