QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF POTIER||Claimant|
WordWave International Limited
Trading as DTI Global
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Defendant was not represented, did not attend
Crown Copyright ©
MRS JUSTICE LANG:
"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."
(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.