Strand, London, WC2A 2LL
B e f o r e :
| (1) ALEXANDER RICHARD FRANKS
(2) IRENE KATHLEEN ELIZABETH FRANKS
|- and -
|(1) ROY ANTHONY BEDWARD
(2) ANGELA JUNE BEDWARD
Mr Timothy Morshead (instructed by Treasury Solicitor, One Kemble Street, London WC2B 4TS) for the Chief Land Registrar
Mr and Mrs Franks appeared in person
Mrs Angela Bedward appeared in person
Hearing date: 28th June 2010
Crown Copyright ©
Mr Justice Briggs:
THE PROCEDURAL HISTORY
"Unless the Applicants/Appellants do attend the offices of the Respondents' solicitors Irwin Mitchell, at Riverside West, 1 Millsands, Sheffield S3 8NH on a date to be agreed during the month of August 2007 to identify the document or documents said to constitute their statement of case, for which purpose the Respondents' solicitors shall provide to the Applicants/Appellants a list of available dates, the Adjudicator will require the Chief Land Registrar to cancel the original application dated 18th April 2005 to register title based on adverse possession."
" 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 response, by letter from the Gloucester office of the Land Registry dated 9th 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 Land Registry if the matter is to be revived."
THE STATUTORY SCHEME
"(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"
The Franks' registration application is a type of pending application which the Registrar is therefore required to record in the day list.
"(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
(b) (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."
Similar provision is made in relation to applications received otherwise than on a business day and, under sub-rule (3), an application is received when it is delivered to the designated proper office of the Land Registry, subject to irrelevant exceptions.
"(1) 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."
"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."
Part 3G of Schedule 6 to the LRR provides that an applicant for an official search is to be given notice of the entry of any relevant pending applications affecting the registered title entered on the day list.
"(1) Where there is a hearing, the substantive decision of the adjudicator may be given orally at the end of the hearing or reserved.
(2) A substantive decision of the adjudicator, whether made at a hearing or without a hearing, must be recorded in a substantive order.
(3) The adjudicator may not vary or set aside a substantive decision."
By AR 40:
"(1) A substantive order must-
(e) state any steps that must be taken to give effect to that substantive decision."
By AR 40(2) the substantive order must be served by the Adjudicator on every party to the proceedings and, where it requires the Registrar to take action, the Registrar.
"Where a party is granted permission to appeal, the adjudicator may, of his own motion or on the application of a party, stay the implementation of the whole or part of his decision pending the outcome of the appeal."
By sub-rule (2) a party wishing to apply for a stay is required to make his application to the Adjudicator at the same time that he applies to the Adjudicator for permission to appeal. By sub-rule (4) the Adjudicator must, before reaching a decision whether to grant permission to appeal a decision, or to stay implementation of a decision, allow the parties the opportunity to make representations or objections.
"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."
I consider that this sub-rule clearly shows that the day list is an index which contains information about alterations which may be made to the Register, so as to give appropriate warning to interested parties. This is not the Register itself, nor part of it.
(a) An order that the Registrar re-enter the registration application on the day list, with its original date of entry, but with liberty to any aggrieved third party with an interest in the relevant land to apply to have the order varied or set aside.
(b) Allow the appeal, but treat the steps made in the cancelled application as steps in a new application for registration to be made by the appellant, and waive any duplicative fees.
(c) Adjourn the appeal for inquiries as to the state of the Register and of the day list, so as, if possible, to avoid the need for liberty to apply under (a).
(d) Direct the re-entry of the registration application, but with a postponed date of entry.
THE PRESENT CASE