England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Thursday 10 December 2015

MRS JUSTICE LANG:

1. This is a renewed application for permission to apply for judicial review of the Defendant's refusal to register the Claimant's "life tenancy" over a property known as Cacketts, Chart Lane, Chart, Kent, TN16 1LR.
2. Neither the Claimant nor the Defendant have appeared today for reasons which I will deal with in the course of my ruling. I have decided nonetheless to go ahead and to determine the application today.
3. Permission was refused on the papers by Nicol J on 8 October 2014 on the grounds of delay and the lack of any grounds in the grounds. In my judgment the claim is unarguable on the merits.
4. The Claimant states that he purchased the property in 1981 jointly with his then wife. They separated in 1989. He refers to a consent order filed in the divorce proceedings which stated that his ex-wife was the freehold owner of the property but that the Claimant would enjoy a tenancy for life. In December 1999 the Claimant departed for Australia and, as he was imprisoned there, he never returned. Subsequently, his ex-wife sold the property in 2004. The Claimant alleges that the sale was without his knowledge or consent and was only made possible because of a fraudulent transfer purporting to transfer his interest in the property to his ex-wife.
5. Over a period of years the Claimant and his ex-wife made representations to the Defendant concerning this matter. A letter from the Defendant dated 15 July 2013 stated that the Land Registrar reached a final decision on 8 August 2012 that the Claimant did not have a life tenancy in the property and was not entitled to apply either for a restriction or a notice in relation to the property.
6. In its grounds of resistance to this claim the Defendant states as follows:

"6 The Claimant and his wife Sharon Elizabeth Potier, now his ex-wife (the 'ex-wife'), were registered as proprietors of land formerly known as Cacketts, (but latterly as Chart Place), Chart Lane, Brasted Court, Westerham in Kent, title to which is registered under title number K140294 (the 'property') in 1981. They subsequently separated and were divorced in proceedings in the Bromley County Court numbered 91D0826 in which the Claimant was the petitioner and the ex-wife was the respondent.

7 In those proceedings a consent order was made. The Defendant has never seen a sealed copy but he has copies of two versions signed by the Claimant herein and the ex-wife. Copies of both are annexed hereto.

8 One bears date 1 September 1989 (although it is said to be proceedings numbered 91D0826) and (so far as here relevant) recites that the ex-wife agrees to grant the Claimant tenancy to occupy the property for the remainder of his life, and that she agrees to grant the Claimant's group of companies a licence to occupy the property revocable by three months' notice by the ex-wife, such arrangement to be binding on any future purchaser of the property; and then in its operative provision provides that the Claimant should immediately transfer as trustee to the ex-wife his estate and interest in the property free from incumbrances.

9 The second bears date 26 December 1991 and has a similar recital concerning a grant to the companies but does not refer to any tenancy or similar right in favour of the Claimant; the operative provision is in similar terms to that in the first-mentioned order.

10 In 2003 a transfer of property was lodged bearing date 12 February 1992, and stated to be founded on an order (the date of which is not stated) made in the divorce proceedings by which the Claimant and the ex-wife transferred the property to the ex-wife. The transfer made no mention of the rights said to be reserved to the Claimant or to any company.

11 Pursuant to that transfer the ex-wife was registered as sole proprietor of the property. The Claimant has since 2005 claimed that his name was forged on that transfer and has variously asked the Defendant to register a caution, a notice or a restriction over the property; but this claim is the first attempt he has made by legal proceedings to have the Register altered.

12 At some point before 12 March 2004 the ex-wife appointed another person to act as another trustee in the legal estate to the property with her and on that date they transferred the property to Beechwood Properties Limited.

13 There have been three subsequent transfers of the property, all for valuable consideration and all at times at which the Claimant was not in occupation or possession of the property and at which his purported interest or claim was not protected by any entry on the Register, so that by Section 29 of the Land Registration Act 2002 any such purported interest or claim is postponed to the interest under those transfers. The present proprietor was registered as proprietor on 21 March 2013, about ten years after the transfer to the ex-wife was submitted to the Defendant for registration and more than twenty years after the later of the two orders referred to in paragraphs 7 hereof.

14 The Defendant will say that any interest which the Claimant may have had in the property at any relevant time could arise only in equity and by Section 27 (2) of the Law of Property Act 1925, that interest was overreached on sale of the property by two trustees to Beechwood Properties Limited on 12 March 2004. His claim, if any, will lie only against the proceeds of sale in the hands of the trustees, against whom any such claim shall be made.

15 There are accordingly no grounds upon which the Defendant could register any sort of restriction or notice in favour of the Claimant and prejudicial to the present registered proprietor of the property, and the Defendant respectfully asks for permission to be refused."

7. For the reasons given by the Defendant which I have just read out, I consider that the Claimant's challenge is unarguable and therefore permission ought to be refused.
8. I also refuse permission on grounds of delay. Applications for judicial review must be made promptly and in any event within three months of the date on which the grounds of challenge arose which in this case was the decision of 8 August 2012.
9. The Claimant applied for judicial review on 30 September 2014 based upon the letter of 15 July 2013. The application was made fourteen months after the letter of 15 July 2013 and two years after the decision of 8 August 2012. No good reason has been advanced to justify such an extensive extension of time. The Claimant was in prison in Australia at the relevant time which I accept made it difficult to prepare and commence his claim and so caused delay. But even so, this cannot excuse or explain fourteen months delay. Accordingly, I refuse to grant an extension of time.
10. The Claimant applied to adjourn the hearing listed for today - 10 December 2015 - on the grounds that he was seeking further and better particulars from the Defendant and that he was in Australia. Contrary to what he said, the application was opposed by the Defendant's solicitors. An Administrative Court lawyer refused the application to adjourn. I then reconsidered the application on 8 December, having regard to the Claimant's written representation dated 7 December 2015, and I also refused it.
11. My reasons were as follows:

(1) The request for further and better particulars of the Defendant's submissions was inappropriate, especially at permission stage. The Claimant appeared to misunderstand the nature of the judicial review. It is not an appeal against the decision of the Land Registry. Some error of law must be identified.

(2) The delay was unjust to the Defendant and contrary to the overriding objective of dealing with cases expeditiously as set out in CPR 1.1. Although I accept that the further delay since Nicol J's decision was largely due to factors outside the Claimant's control, it was now December 2015 so three and a half years since the Land Registry decision and approximately eleven years since the sale of the property. If this hearing was adjourned there was no reliable evidence that the Claimant would be present in the UK in the near future in order to attend the hearing. I assumed in his favour, without knowing for sure, that he had now been released from prison and was not prevented from travel under the terms of any parole licence. However the evidence supplied in his letter dated 7 December 2015 indicated that the UK authorities had not yet agreed to renew his passport which suggested that return to the UK was not going to be a straightforward matter.

(3) The Claimant has not been either willing or able to instruct legal representatives to act on his behalf for the hearing.

(4) I concluded that the issues were sufficiently well documented for me to assess them fairly without receiving oral representations from the Claimant. In view of the fact that the Defendant has decided not to attend this hearing, I have, in fact, decided them upon original representations from both parties. And the Claimant has not been put to any disadvantage since I have not heard any oral submissions from the Defendant.

12. For all these reasons the application for permission is refused. No order for costs.