COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Floyd
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEVESON
LORD JUSTICE RIMER
| THE CHIEF LAND REGISTRAR
|- and -
|(1) LEONARD STUART SILKSTONE
(2) GARY GREVILLE SILKSTONE
(3) SIMON DEREK TATNALL
The Respondents were not represented
Amanda Tipples QC (instructed by Treasury Solicitor) appeared as an Advocate to the Court
Hearing date: 26 May 2011
Crown Copyright ©
Lord Justice Rimer :
' whether I was right in law in dealing with the matter as I did, and as to whether a party in proceedings before the Adjudicator is free to withdraw at any time, while remaining free to pursue the same claim elsewhere, or by a fresh application to the Land Registry, unfettered by the sort of restraint on further proceedings imposed where court proceedings are discontinued by CPR38. The outcome of the appeal would not appear to me to affect the order made but would affect [the Silkstones'] right to bring fresh proceedings.'
' to the effect that the disputed application referred to the Adjudicator by the Land Registry should be given effect to leaving the way clear for [them] to take out court proceedings at a later date if they so choose.'
' I understand that [Mr Tatnall] intends to attend at your offices on 2nd June in order to obtain clarification from the Adjudicator of the position regarding maintenance and repair and whether [he] and his family need to offer a key to the [Silkstones'] property. I would respectfully suggest that this would not be a matter for the Adjudicator to be concerned with as the application initially by the [Silkstones] to the Land Registry was for a right of way across No 3 which has now effectively been withdrawn.'
The letter referred to Mr Tatnall's potential claim for costs but said that, having regard to the notice of withdrawal there appeared to be little justification for anyone attending the hearing. On 2 June the Silkstones sent a further fax to the adjudicator by which they confirmed that had withdrawn their objection to Mr Tatnall's application.
'(3) The person shown in the register as the beneficiary of a unilateral notice, or other such person as the rules may provide, may apply to the registrar for the removal of the notice from the register.'
Section 34 therefore empowers the claimant to a particular interest to apply for the entry of a unilateral notice in respect of it; and section 35(3) enables him to apply subsequently for its removal.
'85. (1) An application for the removal of a unilateral notice from the register under section 35(3) of the Act must be in Form UN2.
(2) The personal representative or trustee in bankruptcy of the person shown in the register as the beneficiary of a unilateral notice may apply under section 35(3) of the Act; and if he does he must provide evidence to satisfy the registrar as to his appointment as personal representative or trustee in bankruptcy.
(3) If the registrar is satisfied that the application is in order he must remove the notice.'
Form UN2 is straightforward and enables the beneficiary of a unilateral notice (or a personal representative or trustee in bankruptcy claiming through him) to apply, on paying the appropriate fee, for the removal of the notice. There is nothing in the Act, the LRR or Form UN2 suggesting that there are any circumstances in which a beneficiary who fills the form in correctly and pays the fee is not entitled as of right to have the notice removed.
'(2) Where an application is made under subsection (1), the registrar must give the beneficiary notice of the application and of the effect of subsection (3).
(3) If the beneficiary of the notice does not exercise his right to object to the application before the end of such period as rules may provide, the registrar must cancel the notice.'
'73. -- (1) Subject to subsections (2) and (3), anyone may object to an application to the registrar.
(2) In the case of an application under section 18, only the person who lodged the caution to which the application relates, or such other person as rules may provide, may object.
(3) In the case of an application under section 36, only the person shown in the register as the beneficiary of the notice to which the application relates, or such other person as rules may provide, may object.
(4) The right to object under this section is subject to rules.
(5) Where an objection is made under this section, the registrar
(a) must give notice of the objection to the applicant, and
(b) may not determine the application until the objection has been disposed of.
(6) Subsection (5) does not apply if the objection is one which the registrar is satisfied is groundless.
(7) If it is not possible to dispose by agreement of an objection to which subsection (5) applies, the registrar must refer the matter to the adjudicator.
(8) Rules may make provision about references under subsection (7).'
'(2) Subject to that, rules may regulate the practice and procedure to be followed with respect to proceedings before the adjudicator and matters incidental to or consequential on such proceedings.
(3) Rules under subsection (2) may, in particular, make provision about
(a) when hearings are to be held,
(b) requiring persons to attend hearings to give evidence or to produce documents,
(c) the form in which any decision of the adjudicator is to be given,
(d) payment of costs of a party to proceedings by another party to the proceedings, and
(e) liability for costs thrown away as the result of neglect or delay by a legal representative of a party to proceedings.
Functions in relation to disputes
110 (1) In proceedings on a reference under section 73(7), the adjudicator may, instead of deciding a matter himself, direct a party to the proceedings to commence proceedings within a specified time in the court for the purpose of obtaining the court's decision on the matter.
(2) Rules may make provision about the reference under subsection (1) on matters to the court and may, in particular, make provision about
(a) adjournment of the proceedings before the adjudicator pending the outcome of the proceedings before the court, and
(b) the powers of the adjudicator in the event of failure to comply with a direction under subsection (1).
(3) Rules may make provision about the functions of the adjudicator in consequence of a decision on a reference under section 73(7) and may, in particular, make provision enabling the adjudicator to determine, or give directions about the determination of
(a) the application to which the reference relates, or
(b) such other present or future application to the registrar as the rules may provide .'
'substantive decision' means a decision of the adjudicator on the matter or on any substantive issue that arises in it but does not include any direction in interim parts of the proceedings or any order as to costs or any order as to costs thrown away;
'substantive order' means an order or direction that records and gives effect to a substantive decision.
Rule 3 incorporates an 'overriding objective' in terms broadly modelled on CPR Part 1.1. Rules 6 to 9 relate to cases in which the adjudicator has (under section 110(1) of the Act) directed a party to commence court proceedings for the purpose of obtaining the court's decision on the matter referred to him. They provide that, once he has notice that court proceedings have been issued, the adjudicator must adjourn all the proceedings before him pending their outcome. It is, however, to be noted that the reference before him will ordinarily remain formally alive even after the final court order, rule 8(3) providing that:
'(3) Once he has received a copy of the final court order and unless the court directs otherwise, the adjudicator must close the proceedings before him without making a substantive decision.'
Rules 12 to 14 deal with the exchange of written statements of case for the purposes of the reference, with rule 14 prescribing that such statements must include, amongst other things, the facts and documents the party intends to rely upon and a list of the witnesses he proposes to call in support of his case.
'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 if 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.'
Rules 42 and 43 contain elaborate provisions as to the adjudicator's jurisdiction to make costs orders.
'77(1) A person must not exercise any of the following rights without reasonable cause
(a) the right to lodge a caution under section 15,
(b) the right to apply for the entry of a notice or restriction, and
(c) the right to object to an application to the registrar.
(2) The duty under this section is owed to any person who suffers damage in consequence of its breach.'
24. If a party had the power at any time before a substantive decision was given to bring the proceedings to an end by discontinuing an application or an objection, whether by notice to the registrar or to the adjudicator, then there would be nothing to prevent such a step being taken at any time, even after the hearing had been concluded and the adjudicator was in the process of writing a decision, the likely outcome of which had been made clear at the hearing.
25. That might not matter if the result of the withdrawal of the application or objection was that the matter was determined once and for all, whether by judicial decision or otherwise. But that is not always the case. An application to enter a restriction to protect an alleged beneficial interest may be withdrawn, or submitted to, for a variety of reasons, but it does not follow that the party withdrawing or submitting to the application cannot thereafter claim that there is, or is not, a beneficial interest. So too, the withdrawal of other applications does not mean that the underlying right that was being asserted is being given up. It may mean no more than that the party in question does not have the funds for litigation at that stage and does not wish to pursue proceedings. So too, where proceedings are struck out by the adjudicator, that does not mean that underlying rights are decided and there have been a number of cases where those rights have been re-asserted.
26. It appears to me to be in accordance with both the letter and the spirit of the rules and with the need to deal with matters justly and for the parties to help the adjudicator to deal with matters justly, that a party should not be permitted to avoid an adverse decision by withdrawing an application or objection whether by notice to the adjudicator or to the Land Registry. The adjudicator has power to decide how to deal with the subject of the reference justly, and this must include the power to decide whether to permit a party to withdraw by discontinuing an application or objection without a judicial determination of the issue.
27. In many cases, at an early stage of the proceedings, the just approach may well be to permit withdrawal, although the party withdrawing should appreciate that in most cases he or she will then be liable for the costs of the other side. In other cases, where the matter has been heard and is awaiting the adjudicator's decision, it is very likely to be unjust to permit such withdrawal. This is also the case where the matter is very close to being heard. It is particularly the case where the other party is a litigant in person who has expended considerable time and energy, and incurred considerable stress, in dealing with the case, for which he cannot be compensated in costs. Even with represented parties, they are unlikely to recover all their costs, and in general, although everything must depend on the facts of the individual case, once a case is close to trial, in my judgment a party should not be permitted to withdraw (other than on the basis of a compromise agreed with the other party) except upon terms that the disputed rights of the other party are conceded and will not be challenged again.
28. A purported notice of withdrawal, whether given to the Land Registry or to the adjudicator, will be ineffective until the adjudicator has ruled on the terms on which the notice will be given effect to and the terms have been accepted by the party seeking to withdraw.'
'34. I think that the proper analysis is that the Adjudicator does not have the power to accept or reject a withdrawal of the original objection. That simply cannot be done when the matter is before the Adjudicator. The Adjudicator's sole function is to determine the proceedings before him. If the parties are agreed as to the terms on which those proceedings are to be determined, then he can give effect to that agreement by giving appropriate directions to the Registrar. But if the parties are not so agreed, there is no need or basis for him to give a ruling on any terms.
35. On the other hand, as indicated earlier in this judgment, if a party wishes to take no further part in the proceedings before the Adjudicator, then he is free to do so, and there is nothing in the Act or Rules which requires him to seek the permission of the Adjudicator. Where this occurs, the Adjudicator may proceed with the reference and reach such conclusions as are justified by the evidence. Alternatively there may come a point where the non-participating party has failed to comply with directions, and the power to sanction under Rule 55 comes into play. But none of these involves the implication of a power to accept or refuse the withdrawal of an objection. Withdrawal from the proceedings is a quite different matter from withdrawing the underlying objection, which is something which cannot be achieved whilst the matter is referred to the Adjudicator.
36. Accordingly I would hold in the present case that the Adjudicator's jurisdiction to determine the matter referred to him continued notwithstanding the purported withdrawal by the Silkstones. Mr Tatnall was seeking a substantive remedy, namely cancellation of the unilateral notice, and was entitled to demonstrate that he was entitled to it by obtaining a decision from the Adjudicator to that effect. The Silkstones had not withdrawn the underlying objection by withdrawing it from the Registrar and could not do so. They had to extricate themselves from the reference before the Adjudicator. To do that they would either have to settle with Mr Tatnall, or concede the relief he was seeking and his entitlement to it. They did not do so.'
Lord Justice Leveson :
Lord Justice Mummery :