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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Jennifer Annabell Mann v David William Dingley (Alteration and rectification of the register : Correcting a mistake) [2011] EWLandRA 2010_0582 (21 July 2011)
URL: http://www.bailii.org/ew/cases/EWLandRA/2011/2010_0582.html
Cite as: [2011] EWLandRA 2010_0582, [2011] EWLandRA 2010_582
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IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION BRISTOL DISTRICT REGISTRY |
No. 1BS02458
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Sitting at:
Bristol Civil Justice Centre
2 Redcliff Street
Bristol
BS1.6GR
Thursday, 21st July 2011
Before:
HIS HONOUR JUDGE McCAHILL QC
B E T W E E N :
JENNIFER ANNABELL MANN Applicant/Respondent
- and -
DAVID WILLIAM DINGLEY Respondent/Appellant
_________
Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
_________
MR. C. ELLIOTT appeared on behalf of the Applicant.
MR. C. AULD TD appeared on behalf of the Respondent.
_________
J U D G M E N T
(As Approved by the Judge)
JUDGE McCAHILL:
1 On 11th March 2011, Mr. Michael Michell, sitting as a Deputy Adjudicator to HM Land Registry ordered that the Chief Land Registrar do: (a) give effect to the application of the applicant, Mrs. Mann, dated 14th December 2009 for alteration of the Register of Title CL248547 under para. 5 of Schedule 4 to the Land Registration Act 2002, to remove part of the land comprised in that title as shown on the plan attached to the application, as if the objection of the respondent, Mr. David William Dingley, had not been made; and (b) do cancel the application of the applicant of the same date to be registered as proprietor of that land.
2 Mrs Jennifer Annabell Mann was the applicant in the court below, and is now the respondent to this appeal. Mr David William Dingley was the respondent to Mrs. Mann's application in the court below, and is the appellant before me.
3 Mr. Auld appeared as counsel here and below on behalf of Mr. Dingley.
Mr. Mann, Mrs. Mann's husband, had appeared on her behalf in the court below, but now Mr. Elliott of counsel appears here on behalf of Mrs. Mann before me.
4 It is apparent from material that I have read that Mr. Elliott had had some involvement in the case at an earlier stage, although did not act as legal representative at the hearing.
5 The first ground of appeal, with which this part of my judgment is concerned, is that the Deputy Adjudicator erred in law in holding that Mrs Mann had the necessary locus to make the application, set out at paragraph 1(a) above, which had succeeded before the Deputy Adjudicator.
6 The central issue in simple terms is where a boundary line should be drawn between land owned by Mrs. Mann, which she acquired in 1989, and land owned by Mr. Dingley, which had been in his family for a large number of years.
7 The problem stems from the fact that a gentleman called Mr. Tremayne owned a large amount of land in the area with which I am concerned, and gradually sold off that land. Specifically, the land with which I am concerned is land comprising or projecting from field no.4071 in the 1907 County Series Map, which was the base for the 1939 conveyance to which I shall refer.
8 Mr. Tremayne's land holding started in or about 1915, and there is a conveyance or indenture under which his land holding was acquired. However, that document is no longer in existence or it has certainly not been produced either to the Deputy Adjudicator or to me. It would have been advantageous to have it because it would have showed us what, on one view, Mr. Tremayne acquired. There are hints of what he acquired in 1915 from the 1939 conveyance, where parts of the 1915 conveyance are set out. But what is not available is any plan that would have told us what Mr. Tremayne acquired in 1915.
9 We move forward then from1915 to 1939.
10 By 1939, some of the land which Mr. Tremayne owned was occupied either by tenants or licensees, Mr. Jeffreys and Mr. Williams. I can do no more than start by referring to the plan at p.179 in the trial bundle, which everybody has accepted before me and in the court below as the plan which was attached to the 1939 conveyance. On that plan, the upper area coloured in red, roughly a large "L" shape, comprised the site of the two semi-detached dwellings occupied by Mr. Jeffreys and Mr. Williams. The area to the south of that, also coloured red and comprising significantly field 4071, was the garden of one or both of them. It certainly comprised part, if not all, of the garden of
Mr. Williams. On the plan, there is a legend which identified a hatched area and described it as "Retained by the vendor". That hatched area appears to be at the extreme easterly end of field 4071.
11 Under the 1939 conveyance, Mr. Tremayne sold the land shown red on that plan, for identification purposes only, to Mr. & Mrs. Jenkin. The Jenkin family are the ultimate predecessors in title of the Dingley family. Having been acquired by the Jenkin family, the land passed to Mr. Goad. He then executed a deed of gift of it to a lady called Doris Jane Allen. She married
Mr. Dingley and brought to the marriage the land which can be tracked back to the 1939 conveyance. Mr. & Mrs. Dingley subsequent divorced, Mr Dingley left the area and went back to the Midlands, leaving Mrs. Dingley living in one of the stone cottages in the land to the North of 4071, the upper area edged red, with her sons, one of whom is the respondent, David William Dingley.
12 Mrs. Dingley herself died in 2007. Mr. David William Dingley became her executor and then assented to himself, and into his name was transferred all the property comprised in the 1939 conveyance. That explains how the Dingley family relies upon the 1939 conveyance to own the bulk of its land.
13 However, the problem was, and still is, that Mr Tremayne retained, out of the land sold to the Jenkin family, a 10 feet long strip, the precise location of which is the subject matter, in whole or in part, of this case.
14 Meanwhile, Mr. & Mrs. Mann bought a farm, Chynalls Farm, which is not far at all away from Field 4071.Trenear Lane runs east to west (from the right to the left) on the plan. The land on which Mrs. Dingley lived was to the north of that lane. Field 4071 is immediately to the south of that. Chynalls Farm is slightly to the right of both those properties, and is separated from them by another lane called "Bodilly Lane" which runs north to south forming a junction with Trenear Lane.
15 Mr. & Mrs. Mann bought Chynalls Farm from someone wholly unrelated to Mr. Tremayne. However, from their farmhouse at Chynalls Farm is a beautiful and unspoilt view over the countryside. One of those views is over what might include the 10 feet long strip and other adjacent land, which the Manns want to preserve for its visual amenity.
16 When Mr. Tremayne died, his executor was a lifelong friend, Mrs. McColl, who had also lived in some of the properties nearby. As the executor of
Mr. Tremayne, she became the legal owner of whatever it was that Mr. Tremayne had reserved and kept for himself out of the 1939 conveyance.
17 At this stage, it is convenient to look at two documents in the trial bundle which were before the Adjudicator. The first is at p.5 in that bundle. It was attached to Mrs Mann’s application. It neatly shows in one view all the properties that I have been describing, especially if one holds alongside it the plan at p.179. In the north-eastern quarter of p.5 one sees Chynalls Farm. One can see to the west of Chynalls Farm, running roughly north/south, Bodilly Lane until it joins Trenear Lane. To the left of that junction, on the northern side of Trenear Lane, the land owned by the Dingley Family, including the cottage at which Mrs. Dingley lived, is visible. Below that, is Field 4071.
18 The problem which one can see immediately - from comparing p.179, the plan from the 1939 conveyance, with the plan at p.5 - is that there is now much more land shown on that plan than would appear to be the case at p.179. In other words, the disputed land, shown red and blue on p.5 in the bundle, the subject matter of the dispute before the Deputy Adjudicator, seems now to go beyond the end of the red colouring at p.179. That can be simply demonstrated in that the colouring on p.5, in red and blue, takes one effectively up to the middle of Bodilly Lane where it joins Trenear Lane.
19 At various stages, structures have been built upon the land which, on one view, is to the east of the end of field 4071. Those structures included not only a Nissen hut in which Mr. Tremayne lived and where some machinery was kept, but also a shed in where a generator was kept.
20 Mrs. Mann’s application related to the red and blue areas shown on p.5, both of which are included in a title which was registered in Mr. Dingley's name on 6th May 2008. Mrs. Mann's claim is that the red rectangular and blue triangular areas, shown on p.5, should be excluded from Mr. Dingley's registered title.
21 Mr. Dingley accepts, for the purpose of these proceedings, that the blue triangular area should be removed from his title, but does not accept that red rectangular area should also be excluded. Indeed, it is common ground that, even if the Deputy Adjudicator were correct in the ultimate conclusion to which he came as a matter of substance in the court below, his order cannot stand in its current form, because it reads as though he ordered the exclusion of the entire red rectangular area from Mr. Dingley's title, whereas even Mrs. Mann accepted that that is too much of a reduction of Mr. Dingley's title.
22 Mrs. Mann's case before me was that the only area of land to be taken out of Mr. Dingley's title is that shown in green on ‘Trace X’, which had been prepared, as long ago as 1973, by the Land Registry. That trace is a precious document, and it is possible to see other versions of it in the trial bundle. The situation is graphically demonstrated by a series of coloured entries on a plan, on p.384, where the field 4071 is shown, with blue, green and orange coloured areas. The green area on p.384, as I understand it, corresponds with the green area on Trace X.
23 The order made by the Deputy Adjudicator, in acceding to Mrs. Mann's application by removing the whole of the red area, is conceded by Mr. Elliott to be too generous to his client. The most that Mrs. Mann can claim to have removed from Mr. Dingley's title is not only the green area, between the lines A and B, shown on Trace X but also all land to the east of that green rectangle shown on that trace.
24 Mrs. Mann had bought whatever land had been excepted or reserved from the 1939 conveyance from Mr Tremayne’s executor, Mrs. McColl. Unfortunately, the purchase in 1989 of that land for £9,500 triggered first compulsory registration, and there was a deed of conveyance of the legal estate of that unregistered land by Mrs. McColl to Mrs. Mann. It became an unregistered legal estate in that land vested in the name of Mrs. Mann.
25 Unfortunately, on an occasion of first compulsory registration, unless the title is registered within a period of two months, the transfer of the legal estate is rendered void, and the legal estate defaults to the vendor, in this case Mrs. McColl, who held the legal estate on trust for Mrs. Mann, the purchaser.
26 Mrs. Mann tried, in 1992/93, to have herself registered as the proprietor of the land which she had bought, and got a fair way through the process, until the registration was cancelled for rather unclear reasons, which appear to be associated with not answering a letter from the Land Registry in January 1994. Also, by that stage, a dispute had arisen between Mrs. Dingley and Mrs Mann over precisely what area was properly to be included in the title which Mrs. Mann was seeking to have registered following the 1989 purchase.
27 Correspondence between solicitors, then acting for the Dingley Family, and solicitors, then acting for Mrs Mann, and the Land Registry revealed that the Land Registry had come to a fairly strong, albeit not concluded view, because the application had been cancelled, as to what land had been excluded or reserved from the 1939 conveyance.
28 In a nutshell, the Land Registry considered that the land excluded from the 1939 conveyance was the land shown green on Trace X.
29 The matter then seemed to come to an end. There is correspondence in December 1994 in which the parties were lining up to litigate about trespass, as Mr. & Mrs. Mann were complaining about the Dingley threats to come on to land which they believe they had acquired under the 1989 purchase. However, in March 1994, Mrs Mann’s application was recorded as having been cancelled. Yet, in December 1994, solicitors acting for Mr. and Mrs. Mann were are threatening proceedings against the Dingley Family, on the basis that Mrs Mann still owned the land, the subject matter of the earlier but then cancelled application for registration. The reasons for the Land Registry’s cancellation were not immediately apparent, beyond the suggestion that some correspondence had not been answered.
30 The Deputy Adjudicator concluded that the only reasonable inference from the cancellation in March 1994, and the correspondence on 16th December 1994, was that there was something of a stalemate. There was an unresolved property dispute about where the true boundary line lay between land acquired by the Jenkin Family, and therefore the Dingley Family, and the land reserved out of that sale and subsequently bought by Mrs. Mann.
31 Mr. Auld, counsel on behalf of Mr. Dingley, has argued that that was really an unreasonable and impermissible view for the Deputy Adjudicator to take, having regard to the length of time which had elapsed between the correspondence petering out in December 1994 and Mrs. Mann's application to rectify the Register by removing land from Mr Dingley’s registered title.
32 In summary, between December 1994 and the death of Mrs. Dingley in 2007, there is no documentary trail to see what the parties are saying or doing. There was a dispute between them about who was using what piece of land. Or, if there was no dispute, they both put different emphases on the use to which they were putting their own or claimed land.
33 Following the death of Mrs. Dingley, her son, Mr. Dingley, sought to get the matter sorted out. As all the Dingley land was still unregistered, and because he wanted to sell it as executor, he had to set about getting the land registered, since there had been an assent to him and a prospective sale was involved. Therefore, he applied to the Land Registry, claiming that he was entitled to be registered for all the land shown red on p.112 in the trial bundle.
34 The land, in respect of which he sought to be registered as the freehold owner, insofar as is material to this case and insofar as related to Field 4071, was not only Field 4071 but also the entirety of the land projecting eastwards from the end of Field 4071, right up to a wall adjacent to a stream running diagonally out of Field 8036, as shown on p.112.
35 On any view, it seems to me, comparing only p.179, the plan attached to the 1939 conveyance under which the Dingley Family got its title, with their claim for registration on p.112, that Mr Dingley was seeking to register more than was shown on the 1939 plan. Indeed, it included the blue triangular area, identified on the plan on p.5, which Mr. Dingley has conceded must be withdrawn from his title in any event.
36 On 6 May 2008, Mr. Dingley was given title no.CL248547. There were problems with getting the definitive Land Registry title plan sorted out.
37 The first title plan issued to Mr. Dingley, R14 in the bundle before me, showed that the Registry had, in fact, removed the equivalent of the blue triangular area from the title it issued to Mr. Dingley. The title recorded in Mr. Dingley's name more or less ended at the line where the Nissen hut ended. The parties seem to accept that a rectangle shown on the plan, on the eastern edge below Trenear Lane, represented a Nissen hut which has since been demolished. There had been a dispute over that hut between Mr. Tremayne and Mrs. Dingley over precisely how much of that hut was or was not on Dingley land.
38 Mr. Dingley was not content with that plan because it did not show any rights of way, and so a variation was obtained to the title plan which showed, in brown, all the relevant public and private rights of way and, somewhat erroneously, now credited Mr. Dingley with that blue triangular piece of land, which, before me and the Adjudicator, he had conceded should not form part of his title. Of course, it had been omitted from his first title plan.
39 The amended title plan, at R15, shows edged in red the land in respect of which Mr. Dingley has been registered as owner, but it is common ground that insofar as that shows land to the east of the end of the Nissen Hut, namely the area corresponding with the blue triangle, it should be removed from his title.
40 Mrs. Mann sought to be registered as the freehold title owner of the area, shown on the plan at p.5 edged in red, and also sought to assert a title to the area edged in the blue triangle area. When the application came before the Deputy Adjudicator, one of the decisions he made was that Mrs. Mann could not be registered as a registered owner of anything, because she had no legal title, the legal title to whatever land it was that she owned was still vested in Mrs. McColl. Therefore, the Deputy Adjudicator could not give effect to any legal title of any land in favour of Mrs. McColl in the area with which I am concerned.
41 However, although he was not prepared to register her as legal owner because she was only a beneficial owner as a result of the statutory trust, he also rejected subsidiary arguments advanced by Mrs. Mann that she was entitled to a possessory title in her own right as a result of her occupation and/or because she succeeded to a separate possessory title which Mr. Tremayne had acquired by his occupation of the area many years ago.
42 All three of those points were unsuccessful, the Deputy Adjudicator did not recognise Mrs. Mann as having a legal title because she was only still a statutory beneficiary of a bare trust, and he rejected the two claims for possessory title either by Mrs. Mann in her own right, or by Mrs. Mann having bought it, through the conveyance in 1989 based upon a possessory title that Mr. Tremayne had acquired.
43 What then did that leave? It left the argument that there remained, in Mr. Dingley's registered title plan, land which was not his and in respect of which others had a higher competing claim. In part, that is conceded in that Mr. Dingley accepts that the blue area on the plan on p.5 must be removed from his title. That does not tell anybody where it must go, it just must be removed from his title.
44 However, the point with which this first part of the judgment is concerned, stems from the Deputy Adjudicator’s decision to get involved at all in any non-consensual withdrawal of land from Mr. Dingley's title, specifically the area which is in whole or in part the area edged red on the plan on p.5.
45 Mr. Dingley’s appeal, for which I gave permission to appeal on all grounds, raises three distinct areas.
46 The first is that Mrs. Mann had no locus standi, that is no legal standing, to argue that any land should be withdrawn from Mr. Dingley's title, because she was only an owner of land in equity, not an owner at law. If, therefore, any such argument was going to be advanced then it had to be advanced by the legal owner of the land beneficially owned by Mrs Mann, namely Mrs. McColl.
47 The second argument raised by Mr Dingley was that the Deputy Adjudicator erred in law in his interpretation of the documents concerning the boundary line and in concluding that there should be removed from Mr. Dingley's title both the land coloured green between the lines A and B in Trace X and all other land to the right of it, apart from the blue triangular area which Mr. Dingley conceded should be withdrawn in any event.
48 The third ground of appeal is that, even if Mrs. Mann had locus standi to argue that land should have been withdrawn from Mr Dingley’s title, and even if the construction of the conveyances which found favour with the Deputy Adjudicator were correct, nevertheless he should not have ordered rectification of the Register (i) without the consent of Mr. Dingley (ii) on the basis that the extra land had been erroneously put into his title (iii) that that Mr. Dingley had caused or contributed to the mistake by the Land Registry (iv) by lack of proper care.
49 I shall deal later , in parts two and three of this judgment, with the second and third grounds of appeal set out above. This first part of my judgment is concerned with the first of the three points, namely whether or not Mrs. Mann was entitled to be heard at all, given that she did not have a legal interest in any land, merely a beneficial one.
50 The argument advanced by Mr. Auld, counsel for Mr Dingley, on this ground is reliant heavily upon two decisions which can be considered at the same time. The first is the case of Wells v Pilling Parish Council [2008] 2 EGLR 29, a decision of Lewison J, as he then was. The second is the Scottish Decision of Andrew Wilson & Ors v The Keeper of the Registers of Scotland [1999] SCLR 872, IH.
51 In Wells, Mr. Wells had been able to get himself registered as the owner of a possessory title of some land which fell within Pilling Parish Council. The Council did not at any stage own or occupy the relevant land to which Mr. Wells had secured possessory title. It just took the view that the evidence which Mr. Wells had produced, and on which he had obtained registration, did not justify that registration. The Council then and sought to undermine it, to attack it and to have the Register rectified to remove him from having a possessory title to it.
52 Mr. Edward Cousins was the Adjudicator before whom this matter first came. He took the view, set out in para. 3 of the judgment of Lewison J, as follows:
53 Mr Cousins had held that Pilling Parish Council had the right to challenge the registration, even though it neither owned nor occupied the land itself. It was that decision which was the subject matter of the appeal.
54 However, by the time the appeal came on for hearing, the issues had been so narrowed between the parties that the central issue became: is an application to rectify the register a public or private law matter? It had been conceded that, if it were a public law matter, then Pilling Parish Council, as a public authority with a responsibility for what was going on in its area, had sufficient standing to apply. If, however, an application to rectify the Register were a private law matter, it was conceded that the Council did not have the necessary standing.
55 What does not appear to have been argued, and certainly is not apparent from the judgment, was the question: des one have to have locus standi to apply to rectify the register?
56 The question had been so narrowed down that Lewison J was effectively left with deciding whether the application was a matter of public or private law. He took the view that it was a matter of private law. Having concluded it was a matter of private law, given the concession made, he naturally allowed the appeal and cancelled the application, because of the way in which the question had been narrowed, refined, distilled, packaged and put to him.
57 In the course of his judgment, Lewison J found Wilson & Ors v Keeper of the Registers of Scotland to be a persuasive authority. He said this:
"I was shown a decision of the Inner House of the Court of Session, which is equivalent to our own Court of Appeal. The case is that of Wilson & Ors v Keeper of the Registers of Scotland [1999] SCLR 872. The Inner House, in an opinion delivered by Lord McCluskey, held that in order to apply for the alteration of the register kept under the Land Registration (Scotland) Act 1979, a person had to show a private interest and that the application for alteration of the register was not a vindication of a public right even though, on the facts of that case, it was right to use the foreshore that was in issue.
He then quoted from Lord McCluskey, at p.884:
"In our opinion, there is no answer to this fundamental preliminary point. The scheme of the Act is clear from the full discussion in Short’s Trustees, not only in the House of Lords but also in the Court of Session ... and it need not be discussed here. There is nothing in the present case to suggest that we are here concerned with a vindication of public right of the kind considered by Lord Clyde in Scottish Old People's Welfare Council, Petitioners [[1987] SLT 179]. This is not a true actio popularis in the sense discussed by Lord Clyde at the passage referred to. The fact, if it be a fact, that the appellants have been interdicted from encroaching upon the subjects or part of the subjects included in the two land certificates in question does not appear to us to give them any title to seek a rectification under the provisions of the 1979 Act. We consider that it is clear that those in unchallenged possession of the subjects (even if not proprietors) have a right to exclude others from encroaching upon them. A proprietor in possession never needed to produce a complete feudal title in order to obtain interdict against encroachments upon his property ... The appellants have never claimed that they had any title whatsoever to the subjects; they claim no competing title. As the appellants themselves acknowledge, persons who were total strangers to Greenock could not have a title to seek rectification under section 9."
Then Lewison J continued:
" This case, which can only be persuasive authority ..."
- because it was a Scottish and not an English case:
"... was shown to the adjudicator. However, the adjudicator said, though without going into details, that the law of land registration in Scotland was different to that of England and Wales. Having regard to the effect of registration under Section 3 of the Land Registration (Scotland) Act 1979 and the twin provisions for rectification of the register under Section 9 of that Act and the question of indemnity under Section 12 of that Act, it appears to me, in respectful disagreement with the adjudicator, that the scheme of the Scottish Act is at least sufficiently similar for the decision in Wilson & Ors v Keeper of the Registers of Scotland to be good, persuasive authority."
58 What Lewison J did not do in his citation of the Scottish authority was to dwell upon the facts of the Scottish case. They were strange to say the least, as I set out below.
59 Members of the community of Inverclyde, who were on the Electoral Roll, applied to the Keeper of the Registers of Scotland to rectify the Register in respect of land over which they claimed inalienable rights of navigation and rights over the foreshore on behalf of the citizens. They claimed that those presently registered as the proprietors of the land were not the true owners. Indeed, some years earlier, those same appellants had been restrained by injunction from encroaching on the land. The Scottish Keeper refused to rectify the Land Register, and so the appellants appealed to the Lands Tribunal for Scotland, which refused the appeal, and then to the Court of Session. The appellants argued that, when the first application for registration was made, the proprietors at the time had misinformed and misled the Keepers on facts bearing upon the ownership of substantial parts of the land in question.
60 So, they claimed title to sue on the basis that they were citizens, rate payers and beneficiaries of this Trust, representing the people entitled to the benefits of the Trust. The respondents to the appeal argued that these appellants had no right to sue, because, at best, they were beneficiaries and their only recourse was to sue the trustees for not doing something to protect their interests.
61 It was held that, as the passage I have already quoted indicated, because there was nothing to suggest that it was a vindication of a public right, and since the alternative to rectification was indemnity and any loss would be suffered by the trustees, the appellants neither had title nor interest to pursue the matter. In summary, the Court of Session considered that, even taken the appellants' case at its highest, they were only beneficiaries all under a somewhat nebulous trust and, as beneficiaries, they could not sue. Their appeal was dismissed.
62 The facts were truly bizarre, because the appellants were trying to delete the relevant Corporation, a reputable statutory body, from the Register of Proprietors and to substitute others, who did not want to be subject to any liability which might accrue, if they were made registered proprietors of the land.
63 Those are the two decisions upon which Mr. Auld relies. He submitted that Lewison J's decision in Wells is authority for the proposition that an applicant for rectification of a Register must have locus standi. A beneficiary under a Trust has no locus standi, only the trustee has. Therefore, he argued that Mrs. Mann, at best a beneficiary under the trust created when the transfer of the land to her was declared void by statute because it had not been registered within the two months, has no locus standi. The only person with the necessary standing to apply for rectification was Mrs. McCall, as the only person with legal title, because it had reverted to her as a result of the
non-registration of the land.
64 However, Mr. Auld recognised that, in order to develop his argument fully, he had to submit that the Adjudicator to HM Land Registry, Mr. Edward Cousins, had wrongly decided the case of Burton & Bamford v Walker and Others [REF/2007/1124], in his judgment delivered around January 2009.
65 In that case, Mr. Cousins had explained how the convention had arisen, both in relation to applications for registration and to applications to rectify the Register, that the applicant had to show a competing claim. Practice in the Land Registry then changed, and it was considered that there was no requirement of locus standi to make an application. There were always powers under the Land Registration Rules to dismiss parties from cases, if it were right to do so, and that would include those who had no possible interest in the outcome of the case.
66 However, then came the decision of Lewison J in Wells v Pilling Parish Council, and Land Registry practice changed, at least in relation to applications for rectification, and required an applicant for rectification to show a competing claim. It will be remembered that Pilling Parish Council was not setting up a competing claim; it was simply arguing that Mr. Wells should never have been registered with a title, because the evidence did not justify it.
67 It was the same Mr. Cousins who, at first instance, had held that Pilling Parish Council could apply for rectification, because there was no requirement of locus standi. In the end, the appeal was allowed by Lewison J, although, by that stage, the case had a radically different look about it from the one which appeared before Mr Cousins, because of the concessions made.
68 In Burton & Bamford, Mr. Cousins himself decided that he would now consider - bearing in mind the changes in practice at the Land Registry of a competing interest being required, then no competing interest being required, and then, following Wells v Pilling Parish Council, a competing interest again being required - to review the authorities.
69 After analysing the decision of Lewison J in Wells v Pilling Parish Council, he concluded that, because of the concessions made, the true ratio decidendi did not require an applicant for rectification to show private law standing. He held that the true principle enshrined in Wells was simply that an application to rectify a Register is a matter of private law, not private law.
70 Therefore, he concluded that Wells did not compel him, as a matter of precedent, to hold that an applicant for rectification required locus standi. Accordingly, he felt free to look at the matter afresh, untrammelled by any binding authority.
71 He referred, of course, to the Wilson case. He identified the bizarre features of the Wilson case to which I have referred and, no doubt because it was a Scottish decision and/or because of differences in the two statutory schemes, he did not regard himself as bound to follow Wilson.
72 He then considered the English statutory scheme which underpinned both registration and rectification. He said in para.42 of his judgment:
"Applications to alter the Register are not the same as court actions in Tort for trespass or possession, where the claimant must show a better right to possession than the defendant. Registration of title is a statutory scheme, and it is to the statutory scheme that one looks for the requirements to alter the Register."
73 He then turned to s.73 of the Land Registration Act 2002, which provided that anybody can object to an application for first registration. He found the Act silent as to who can apply for rectification. Since there was nothing in the Act limiting those who could apply for rectification, and since anyone could object to first registration, he considered it would be anomalous if locus standi for rectification were required, when there was no requirement of that kind to object to the first registration.
74 Considering himself free from any binding authority to the contrary, he interpreted the English statutory code for rectification as having no requirement for locus standi to apply to rectify the Register. If necessary to eliminate vexatious parties, the Rules conferred on the Adjudicator all the powers required to strike out or remove parties who have no real interest or proper involvement in the proceedings.
75 In this regard, Mr. Elliott, counsel for Mrs. Mann, drew my attention to the Court of Appeal decision in Oakfern Properties v Ruddy [2006] EWCA (Civ) 1389. This concerned the very different field of service charges under long leases. He relied upon it as providing some support for the decision in Burton v Bamford, because s.27A of the Landlord and Tenant Act 1985 states:
"(1) An application may be made to a leasehold valuation tribunal for a determination whether a service charge is payable ..."
The Court of Appeal, in that case, refused to imply into those general words any restriction, confining the category of those who might apply, to those tenants liable to pay the service charge. It allowed an application to be made by a sub-tenant, who was not directly liable, but had an indirect interest. Jonathan Parker LJ commented:
76 Mr. Elliott argued that the same applied to an Adjudicator, particularly when the Adjudicator has the power summarily to dispose of particular issues under Rule 32A of Land Registration Rules 2003 as amended by The Adjudicator to HM Land Registry (Practice and Procedure) (Amendment) Rules 2008 as well as, of course, the Powers under Rule 24 to regulate the parties who are allowed to remain involved in the case.
77 I find myself in agreement with the approach of Mr. Cousins to this issue of locus.
78 It seems to me that the decision of Lewison J is very much constrained by the concessions which were made, leaving him only to decide whether the matter was public or private. He relied upon the Wilson case to assist him on the resolution of that issue. It does not, in my judgment, constitute a binding precedent requiring an applicant for rectification to have private law standing.
79 Therefore, the perceived difficulties faced by a beneficial owner simply do not arise. I prefer and agree with the reasoning of Mr. Cousins in the case of Burton & Bamford v Walker.
80 Moreover, I see no distinction between possessory and absolute titles in this regard, despite Mr. Auld's arguments about the statutory guarantee of an absolute title. There is no difference in principle between the gateway criteria. There is no limitation on who could apply to rectify whether it is an absolute or a possessory title.
81 However, were I wrong in concluding that no locus is required - a conclusion which itself is derived from the wording of the statute and the anomaly which would otherwise arise, and notwithstanding Wells and Wilson - it seems to me that Mr. Auld’s approach to locus is far too narrow, when considering the question of private law standing. Each case must depend upon its own facts.
82 The Wilson case was one in which the beneficiaries belonged to a very wide class of citizens, who had no power to direct the trustees. The trustees had independent discretions and judgments which they had to exercise.
83 In the instant case, the following facts seem to me to be important:
(i) Mrs. Mann did become a legal owner of a freehold estate of some land as a result of the conveyance in 1989.
(ii) That conveyance was for full value; she paid £9,500 for it.
(iii) It was an unregistered freehold legal estate, which she was required to register. It was not registered.
(iv) The statute declared the transfer to be void and created a statutory trust under which the vendor or transferor, Mrs. McColl, became the owner of the legal estate once more and held it on a bare trust for Mrs. Mann.
(v) Mrs. Mann is a woman of full legal age and capacity, who was therefore in a position to give instructions to Mrs. McColl, which she would be obliged to obey insofar as the dealings with this property are concerned, because she was a bare trustee holding to the order of Mrs. Mann. I regard that as an important difference between Wilson and the instant case, where there was a purchaser for value of specific property, whose directions the trustee had to obey.
(vi) Moreover, although there was a two month period within which the title had to be registered, the Registrar had power to extend that period to prevent the statutory trust arising. That could be done at any time, even now. If such an application were successfully made and retrospectively allowed, it would treat the trust as having never arisen, yet the Act permits an application for an extension of time to be made by "an interested party".
84 It seems to me that, if I were wrong in my primary conclusion that no locus standi is required, the unique circumstances of this case would have led me to conclude that Mrs Mann had the necessary locus. She was a purchaser for value of the legal estate at one time, but lost that status by statute. Nevertheless, she was and is able to regain that status by a successful application to extend time. She should not be regarded, therefore, as a mere beneficiary with no control over her trustee.
85 Accordingly, I hold:
(i) As a matter of law, there is no requirement for an applicant for rectification to have private law standing. The procedural rules and powers of the court are more than adequate to prevent vexatious or abusive applications; and
(ii) If I were wrong and private law standing were required then, in all the circumstances of this case Mrs. Mann has the necessary standing.
86 That concludes my judgment on the first of the three grounds of appeal.
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