England and Wales Land Registry Adjudicator

REF/2012/1003

 

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

Dr Richard Eaton Pearson

 

APPLICANT

 

and

 

(1) Mrs Lillie Eileen Julia Foster and (2) Mr Eric Foster

 

RESPONDENTS

 

 

Property Address: The Mill House, 76 Dorchester Road Maiden Newton Dorchester DT2 0BG

Title Number: DT373770

 

 

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

 

 

Sitting at: Yeovil County Court

On: Monday 18 March 2013

 

 

Applicant Representation: Mr Nicholas Berry, of Counsel, instructed by Messrs Scott Rowe, Solicitors

 

Respondent Representation: Both Respondents were represented during the hearing by Mr Peter Smith, a lay representative, the retainer of Messrs Porter Dodson having been terminated by the First Respondent at an earlier stage.

 

 

FURTHER SUBSTANTIVE DECISION AND DECISION ON COSTS

 

 

KEYWORDS Party raising fresh issues by way of subsequent objection; refusal of Land Registry to give effect to consent order; second referral by HM Land Registry to the Adjudicator to HM Land Registry; estoppel by record - cause of action estoppel - issue estoppel; abuse of process; Rule in Henderson v Henderson; Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 Rules 16(3), 42 .

 

 

Cases referred to: Palmer v Durnford Ford (a firm) [1992] 2 All ER 122; Henderson v Henderson (1843) 3 Hare 100; Johnson v Gore Wood (a firm) [2002] 2 AC 1.

 

BACKGROUND TO THIS DECISION

1.                   This Decision (“the Further Decision”) is promulgated in somewhat unusual circumstances. It arises by reason of the second referral by the Land Registry (“the Second Reference”) of the Application dated 12 ^th August 2010 (“the Application”) made by the Applicant in furtherance of his claim for fishing rights (“the Fishing Rights”) over The Mill House owned by the First Respondent. This Second Reference followed what was treated by the Land Registry as a second objection (“the Second Objection”) made by the Respondents to the Application following the first reference (“the First Reference”) arising from the original objection (“the First Objection”).

 

2.                   In order to understand the factual and legal circumstances giving rise to the Second Reference, and the issues before me in this Decision, it is necessary to have regard to the earlier Decision in REF/2011/0510 (“the Original Decision”). The subject matter of this decision related to the order made by the Deputy Adjudicator on 14 ^th May 2012 (“the May 2012 Order”) following the consent order 16 ^th April 2012 (“the April 2012 Consent Order”) made between the Applicant and the First Respondent via their legal representatives. It is necessary to have regard to the procedural developments which occurred shortly before and after the aborted hearing listed in April 2012 together with the contextual framework surrounding the making of the two Orders. An examination of the facts and legal issues should assist in allaying the undoubted bemusement of the Applicant as to the chain of events over the ensuing 2½ years since the making of the Application.

 

Pre-First Reference correspondence and documentation

3.                   After the receipt of the Application by the Land Registry from Messrs Scott Rowe, and prior to the referral of the Application on 27 ^th May 2011 following the First Objection, correspondence ensued between the Applicant’s solicitors and the Plymouth Land Registry as to the basis of the Applicant’s claim for the Fishing Rights. A number of points were made in correspondence by the Land Registry as to the root of title to such rights. I particularly refer to the letter dated 11 ^th October 2010 from Scott Rowe in response to a Requisition from the Land Registry dated 29 ^th September 2010, and the further letters from the Land Registry dated 13 ^th October 2010 and 27 ^th October 2010. Subsequently, under cover of a Requisition dated 17 ^th November 2010 the Land Registry forwarded to Messrs Scott Rowe three illustrative plans provided in order to clarify the extent of the Fishing Rights sought to be registered by the Applicant (plan A, plan B and plan C). As I have stated in paragraph 3 of my Original Decision confirmation was sought and obtained from Messrs Scott Rowe that Plan C represented the extent of the Fishing Rights claimed by the Applicant as being currently exercised.

 

4.                   Messrs Scott Rowe were then informed in a letter from the Land Registry dated 26 ^th January 2011 that the First Respondent had objected to the Application under section 73(5) of the Land Registration Act 2002 (“the 2002 Act”). A copy of this letter of objection dated 17 ^th January 2011 made by Messrs Simon Jackson (who at that stage had been retained by the First Respondent) was forwarded to this Office with the case summary in the First Reference. In the letter from Messrs Simon Jackson it is stated as follows “….the objection is that the fishing rights comprised in the conveyance dated 8 ^th April 1941 have been abandoned and that the rights no longer subsist.” Messrs Scott Rowe then informed the Land Registry that the Applicant wished to proceed with the Application. Correspondence then ensued between the Applicant’s and the First Respondent’s solicitors, and eventually the case was referred as a disputed application by the Land Registry to the Adjudicator on 27 ^th May 2011 as the First Reference.

 

5.                   At that stage the Land Registry was apparently satisfied that sufficient evidence had been provided of the documentary title so as to enable the Application to proceed, and that the First Objection was not groundless. It is to be noted that although the thrust of the party and party correspondence immediately prior to the First Reference as generated by the First Respondent’s objection appears to have been confined to the question of abandonment of the Fishing Rights, it is to be noted that the Land Registry itself was concerned whether the Applicant had sufficient evidence of his paper title before referring the case to the Adjudicator.

6.                   In about June 2011 the First Respondent married Mr Eric Foster and thereafter became known as Lillie Eileen Julia Foster. I shall hereafter refer to Mr Foster as the Second Respondent as he was made Second Respondent by a Direction made by the Adjudicator on 1 ^st December 2012. Following the marriage the Second Respondent became much involved in the case and subsequently, in effect, became the First Respondent’s lay representative in the conduct of the litigation. In letters dated 11 ^th July 2011 Messrs Simon Jackson (the firm of solicitors previously retained by the First Respondent) informed the Applicant’s solicitors and this Office that they no longer had instructions from the First Respondent in relation to the adjudication. They awaited confirmation that the First Respondent would be dealing with the matter personally. In response to a letter from this Office it was subsequently confirmed by Messrs Simon Jackson in a letter dated 15 ^th August 2011 that they no longer acted for the First Respondent, and that thereafter she was acting in person. Meanwhile the First Respondent had forwarded to the Adjudicator a document described as her first witness statement dated 11 ^th August 2011, apparently produced in response to the Applicant’s statement of case dated 6 ^th July 2011 sent to the Land Registry and Messrs Simon Jackson. In the accompanying fax the First Respondent stated that further witness statements would follow together with further evidence, and a witness statement of Mr Benjamin Graham Moss also dated 11 ^th August 2011.

 

7.                   Directions were then made by the Adjudicator dated 18 ^th August 2011. Subsequently a witness statement was received from Second Respondent dated 3 ^rd September 2011 together with a document entitled “Fishing Rights Information” in which he made reference to the paper title to the Fishing Rights and challenged the Applicant’s title to the same. He referred to a substantial amount of documentation as apparently being relevant to the case. This included a number of historic conveyances.

 

8.                   Full copies of such documents referred to had not been provided with this witness statement (see the letter dated 19 ^th September 2011 from Messrs Scott Rowe). In these submissions specific reference was made to two earlier conveyances, namely a conveyance dated 31 ^st December 1931 (“the 1931 Conveyance”) made between (1) Messrs GAC Thynne and HG Leith as vendors, (2) Mr JLM and Mrs CE Sheridan as first and second mortgagees, and (3) Mr EC Fairweather and Mr MJV Mearns as purchasers , and a conveyance dated 29 ^th June 1932 (“the 1932 Conveyance”) made between the same parties. Copies of extracts of this documentation were provided under cover of a letter dated 29 ^th September 2011 from the Second Respondent together with a “further review” of his previous submission dated 3 ^rd September 2011. Meanwhile the Applicant provided a second witness statement dated 12 ^th September 2011 in which he stated that he felt that he had been put under a disadvantage as the First Respondent had never filed a proper statement of case, and that there was a lack of clarity in relation to the presentation of her case.

 

9.                   In a letter dated 18 ^th October 2011 to the First Respondent specific reference is made by Messrs Scott Rowe to the 1931 Conveyance and the subsequent 1932 Conveyance. They state that the latter Conveyance is mentioned in the second schedule to the 1941 Conveyance made between Mr Sheridan and Mr Fryer which formed the root of title to the Fishing Rights claimed by the Applicant. Reference is also made to an abstract of title of Mr and Mrs JLM Sheridan’s fishing rights. A response was received from the Second Respondent on behalf of the First Respondent dated 24 ^th October 2011 where challenges were made to the Applicant’s interpretation of the Conveyances in question.

 

10.               In their response dated 27 ^th October 2011 Messrs Scott Rowe stated that as the First Respondent did not agree with their interpretation of the conveyances in relation to the Fishing Rights, it therefore seemed that this was one of the issues that would have to be decided at the forthcoming adjudication which by this stage had been set down for hearing in November 2011. In a further letter dated 7 ^th November 2011 Messrs Scott Rowe put the Respondent on notice that raising issues late in the day and the failure to give full disclosure of all documentation that she intended to rely upon (given that some of the documentation provided was still incomplete or illegible) would be drawn to the attention of the Adjudicator when the question of costs came to be decided.

 

11.               In a letter dated 3 ^rd November 2011 from the Second Respondent the succession to the Fishing Rights is put in issue in that it is contended that the rights had been reserved by Mr Fairweather to himself in the 1932 Conveyance. In other words, it was asserted by the Second Respondent that the Applicant, in effect, could not have acquired the Fishing Rights as they had been conveyed elsewhere. In a list of issues dated 8 ^th November 2011 from the Second Respondent he stated that he had spent a “huge amount of time investigating the issue”, which, as he put it, not only included the question of abandonment, but also the legitimacy of the Fishing Rights themselves in the first place. He then makes a detailed analysis of the root of title based upon the various deeds, including the 1931 and 1932 Conveyances. In letters dated 7 ^th and 9 ^th November 2011 to the Respondents Messrs Scott Rowe make specific reference to the question of costs in the context of the raising of issues late in the day and the failure to provide full disclosure. In the list of issues and skeleton argument dated 21 ^st November 2011 prepared by Counsel for the Applicant for the hearing specific reference is made by him not only to the question of abandonment of the Fishing Rights, but also to the root of title.

 

12.               It is to be noted from the above that having regard to the documentation to which they referred, and in particular to the 1931 and 1932 Conveyances, the thrust of the Respondents’ case at this stage was apparently based upon the assertion that the Applicant could not show a good root of title to the Fishing Rights. The assertion made was that there was no chain of title to the Applicant’s predecessors in title as those rights had been reserved by Mr Fairweather in a sale of The Mill House to Mr Mearns in 1931. As contended this resulted in the Fishing Rights in fact being owned by the successors in title to Mr Fairweather and not Mr JLM Sheridan by virtue of the 1941 Conveyance. This meant that, in the Respondents’ submission the Applicant could not provide a good root of title to the Fishing Rights based upon the 1941 Conveyance. Specific reference was also made by the Respondents to the abstract of title of Mr and Mrs J L M Sheridan to the Fishing Rights. Thus it was contended that the Applicant could not demonstrate that he was the true successor in title of the Fishing Rights.

 

13.               Such assertions placed the Applicant, and particularly his solicitors, in a somewhat difficult position as the nature of the Respondent’s objection was the subject of a fundamental change in direction based upon the root of title. Further, as Counsel for the Applicant has stated in his skeleton argument, the documentation provided by the Respondent prior to the hearing on 28 ^th November 2011 was “chaotic and disordered.” It was not clear exactly how the First Respondent (assisted by Second Respondent) were arguing their case.

 

14.               I have already set out the events which took place on the first day of the hearing in November 2011 in paragraph 5 of the Original Decision. Suffice it to say that having regard to representations made by the parties, and at the request of the First Respondent (supported by her husband), I adjourned the hearing of the Application and made directions as to the further conduct of the case. I also suggested to the First Respondent that she should seek and obtain legal advice. This she agreed to do, and she subsequently instructed Messrs Porter Dodson.

 

15.               By the Order dated 29 ^th November 2011 the Adjudicator ordered the First Respondent to file and serve a list of issues identifying all issues to be raised on the question of the Applicant’s title to the Fishing Rights together with a skeleton argument in support no later than 21 days prior to the date fixed for the adjourned hearing. The reason for this was that the issue as to title had already been raised extensively by the First Respondent at length prior to that adjourned hearing in November 2011.

 

The circumstances between November 2011 Hearing and the April 2012 Hearing

16.               In a letter dated 3 ^rd February 2012 Messrs Porter Dodson wrote to Messrs Scott Rowe to advise that firm that the First Respondent had consulted them in the matter. An inspection took place on 14 ^th March 2012 at the offices of Messrs Scott Rowe during which various conveyances were inspected and subsequently copied. Subsequently Counsel was instructed on behalf of the Respondents.

 

17.               Correspondence then ensued between Messrs Scott Rowe and Messrs Porter Dodson. In a letter dated 5 ^th April 2012 Messrs Porter Dodson stated that their client was not proposing to advance any argument over the abandonment of the Fishing Rights. However, concern was expressed insofar as events which took place between the 1931 and 1932 Conveyances when (as it was put) the same fishing rights seem to have been reserved to Mr Fairweather. An explanation was sought as to the chain of title between 1931 and the 1941 Conveyances. This was on the basis that it appeared that Mr and Mrs Sheridan seemed to have obtained certain fishing rights by the 1931 Conveyance, whereas Mr Fairweather seems to have reserved all the fishing rights for The Mill in the sale to the Respondent’s predecessor in title (Mr Mearns) in the 1932 Conveyance. In their subsequent letter dated 7 ^th April 2012 Messrs Porter Dodson stated that the First Respondent merely puts the Applicant to proof of his case to deduce title and to deduce the grant of the profit à prendre to the Applicant.

 

18.               The explanation provided by Messrs Scott Rowe in their response dated 10 ^th April 2012 is that by the 1931 Conveyance Mr Fairweather was to hold the Fishing Rights until the relevant mortgage in favour of Mr and Mrs Sheridan had been discharged. Thus, when Mr Fairweather subsequently sold The Mill House to Mr Mearns by the 1932 Conveyance he had to reserve the Fishing Rights to himself as he still remained the legal owner of the same. Furthermore he had already agreed to sell these on to Mr Sheridan. In short, the Fishing Rights were merely reserved to Mr Fairweather as a trustee for the eventual purchaser of those rights, namely Mr Sheridan.

 

19.               Subsequently a skeleton argument and chronology was in fact served and filed by the Respondents’ Counsel on 13 ^th April 2012 shortly before the hearing. This raised the title issues at length, and there were clearly issues in those proceedings which would have been dealt with at the hearing by the Adjudicator had the dispute not settled by consent.

 

20.               As set out in the Original Decision the parties immediately before the hearing then reached agreement and the April 2012 Consent Order was made, followed by the May 2012 Order of the Deputy Adjudicator. In their personal email dated 16 ^th April 2012 the Respondent and her husband wrote directly to the Adjudicator to the effect that they had decided to withdraw from the case as it was affecting their health, but went on to make various points as to the Applicant’s case including repeating their claim that the Applicant did not have title to the Fishing Rights as asserted by him.

 

The circumstances post April 2012

21.               In paragraphs 9 and 10 of the Original Decision I refer to the events which subsequently transpired and the procedural history whereby the Land Registry treated the Respondents’ representations as the Second Objection culminating in the Second Reference made by the Land Registry on 18 ^th October 2012. In this context comprehensive written submissions were made by Counsel for the Applicant to the Land Registry dated 1 ^st July 2012setting out the Applicant’s position. After protracted correspondence which then ensued between Messrs Scott Rowe, the Land Registry, the Respondents and this Office, the Order of the Deputy Adjudicator was made dated 1 ^st November 2012 in which it was stated that the Adjudicator intended to make an order disposing of the dispute without a hearing for the reasons set out in the attached notice in accordance with Rule 33 of the 2003 Rules. The reasons given for listing the case for summary disposal are set out in the Order made by the Deputy Adjudicator on 1 ^st November 2012 (see Annex 2 to this Decision).

 

22.               The Respondents have since sought to argue that I should in some way set aside or “revoke” the May 2012 Order as it was founded on uninformed consent (see their letter dated 26 ^th March 2013). In my Original Decision I have found that I have no power to set aside the May 2012 Order.

 

The Land Registry’s position

23.               In the case summary dated 18 ^th October 2012 in the Second Reference the Land Registry refers to the fact that the case summary in the First Reference, and the accompanying documents relating to the matter and other papers submitted during the course of the first dispute, detailed the nature of the objection as being essentially founded on abandonment. It is said that prior to the receipt of the May 2012 Order the First Respondent lodged many representations with the Land Registry which eventually culminated in the Second Objection. It is stated that it was the First Respondent’s case at this stage that the Applicant did not have documentary title to the Fishing Rights as summarised in her Second Objection dated 27 ^th June 2012. Reference is then made to the provisions of section 9 of the 2002 Act and Rule 16(3) of the 2003 Rules. It is then stated that the Land Registry was bound to have regard to the Second Objection (once formalised) and was unable to complete the registration of the Fishing Rights “… until due process had been followed, pursuant to section 73 of the [2002] Act”. It is to be noted that no reference is made in this case summary to the April 2012 Consent Order by which the First Respondent in effect withdrew her objection to the Application by consent.

 

 

 

 

THE LEGAL POSITION

Estoppel by record

24.               In my judgment there are two important legal points which arise for consideration, the first of these being the operation of the principle of estoppel by record, and the second being abuse of process and the Rule in Henderson v Henderson.

 

25.               Under the doctrine of res judicata, a matter that has been adjudicated upon by a competent court cannot be re-litigated, and gives rise to an estoppel by record. The rationale for the existence of the concept is summed up in two ways, namely that it is in the public interest that there should be an end of litigation, and that no one should be proceeded against twice for the same cause. It arises where an issue of fact has been judicially determined in a final manner by a court or tribunal having the requisite jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the same parties (cause of action estoppel). I refer in this regard to the case of Palmer v Durnford Ford (a firm) [1992] 2 All ER 122 where it was held that an order made by consent is a final order which can give rise to an estoppel by record. It also arises where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidentally in question in subsequent proceedings between the same parties (issue estoppel).

 

26.               It is to be noted that an estoppel by record applies not only to the parties themselves but also their privies. This includes a husband and his wife claiming under his title, and vice versa. Thus although Mr Foster had not formally been made a party to the Second Reference until 1 ^st December 2012, it is clear from the documentation contained in the trial bundles that following their marriage in June 2011 he played a considerable part in the production of documentation and in the making of a number of representations both prior to the April 2012 Consent Order in the First Reference, and throughout in relation to the Second Reference.

 

27.               I should also mention that although historically only judgments made by a court of record gave rise to an estoppel by record, the doctrine of estoppel by record has been extended by analogy to the decisions of all tribunals which have jurisdiction whether by the law of England, or by the consent of the parties. Thus, the doctrine applies equally in all courts and tribunals which have judicial functions to perform despite the fact that such jurisdictions may not be courts of record (see Halsbury’s Laws of England Volume 12, paragraphs 1168 and 1184).

 

Abuse of process and the Rule in Henderson v Henderson

28.               As stated in Halsbury’s Laws of England (Volume 12, paragraph 1166 and 1267 ff) the law discourages re-litigation of the same issues except by means of an appeal. The basis of this approach is that it is not in the interests of justice that there should be a re-trial of a case which has already been decided by another court, leading to the possibility of conflicting judicial decisions, or that there should be collateral challenges to judicial decisions. As stated, there is a danger not only of unfairness to the parties concerned, but also of bringing the administration of justice into disrepute.

 

29.               The rule is enshrined in the case of Henderson v Henderson (1843) 3 Hare 100 and operates in circumstances where a case does not fall within the rules relating to res judicata. In such circumstances the court may still exercise its discretion under its general inherent jurisdiction to prevent litigation that amounts to abuse of process so as to stop a party from raising an issue which was or could have been determined in earlier proceedings. The rule has been described as being essentially part of the court’s wider jurisdiction for striking out claims as an abuse of process, and as a form of issue estoppel. It is now considered to be separate from both cause of action estoppel and issue estoppel, although it has much in common with them. In effect the rule provides that a claimant is barred from litigating a claim that has already been adjudicated upon. The question arises as to whether in all the circumstances a party’s conduct is an abuse. The scope of the rule has been extended to claims where there has been a settlement rather than a judgment or a consent order (see e.g. Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1.

 

THE DECISION

30.               Having regard to the background circumstances set out above, in my judgment there is no merit in the Respondents’ case and that the Applicant is entitled to the registration of the Fishing Rights for the reasons set out below.

 

31.               It is said by the Applicant that this jurisdiction had appropriate authority to make the May 2012 Order based upon the April 2012 Consent Order. This is on the basis that the latter had been signed on behalf of both parties by their solicitors both parties having been represented at that stage by solicitors and Counsel. It is to be noted that by virtue of the April 2012 Consent Order the Respondent withdrew her objection to the Application. I agree with this interpretation.

 

32.               In my judgment it is clear that following the First Reference, and prior to the settlement of the matter in April 2012, an important issue had developed in the case as to whether or not the Applicant could demonstrate a good root of title to the Fishing Rights. As I have set out above there were three distinct stages of development with regard to the arguments put forward by the First Respondent, and then both Respondents, in relation to the First Objection resulting in the First Reference, and the circumstances relating to the Second Objection culminating in the Second Reference.

 

33.               It can be seen from the analysis that insofar as the pre-First Reference correspondence is concerned, the thrust of the Respondent’s arguments related to the question of whether or not there had been an abandonment of the Fishing Rights, rather than the issue of title. However, the post-First Reference correspondence demonstrates that the question of the Applicant’s paper title then became an issue of particular importance. This seems to have followed the marriage between the First Respondent and Second Respondent in about June 2011, and thereafter the Respondents, and in particular by the Second Respondent started to give detailed consideration to the question of the paper title. Party and party correspondence indicates that the question of abandonment of the Fishing Rights had more or less been dropped at this stage.

 

34.               The circumstances between the November 2011 hearing and the April 2012 hearing reinforced what became the primary issue in the case, namely the question of the Applicant’s paper title to the Fishing Rights. Indeed, as I have stated in paragraph 17 above, in a letter dated 5 ^th April 2012 sent shortly before the hearing the Respondent’s solicitors (Messrs Porter Dodson) stated that they were not proposing to advance any argument on the question of abandonment. It will be noted that the letter sets out in considerable detail the claim that the Applicant could not prove a good root of title to the Fishing Rights.

 

35.               This can be seen particularly during the period after Messrs Porter Dodson came on the scene and Counsel was instructed. Indeed, in the comprehensive skeleton argument produced by Counsel for the Respondents dated 13 ^th April 2012 a considerable part is devoted to the root of title and the transmission of the Fishing Rights. In paragraph 30 reference is made by Counsel as to whether the Applicant has established title to the rights. However, no new evidence apparently was produced by the Respondents as to the inability of the Applicant to prove title, although the Land Registry appear to have been convinced otherwise.

 

36.               In these circumstances it is clear, in my judgment, that the facts, as revealed above, demonstrate that the making of the May 2012 Order gave rise to an estoppel by record. The matter, therefore, had been judicially determined in a final manner by this jurisdiction and therefore could not be re-litigated except on appeal. If I am incorrect in this analysis I find that the rule in Henderson v Henderson applies and that it is an abuse of process for the Respondents to re-litigate the same issues as they have attempted so to do.

 

37.               In such circumstances I do not consider that it was open to the Land Registry, in effect, to review what they considered to be new evidence subsequent to the November 2011 hearing, and then to treat this material provided by the Respondent and her husband as a Second Objection thereby preventing the completion of the registration of the Fishing Rights. I therefore consider that the Second Objection made by the Respondent and her husband attempting to raise fresh issues by way of subsequent objections was and is an abuse of process. I find that the title issue and the root of title had plainly been raised prior to the April 2012 Consent Order and the May 2012 Order made by the Adjudicator.

 

38.               I do understand the position of the Land Registry in this regard and that the perception of their role in the circumstances was administrative rather than judicial. The position they took was that they could not regard the Application as being substantially defective and as a consequence they could not cancel under the provisions of rule 16(3) of the Land Registration Rules 2003. Nor, as they have stated, could they dismiss the Second Objection as being groundless. Therefore their position was that they could not administratively complete the Application pending the resolution of the second dispute despite the consensual resolution of the first. In this regard, it is somewhat curious that no mention is made in the case summary in respect of the Second Objection as to the April 2012 Consent Order which resulted in the May 2012 Order. However, it may well be that the Land Registry was unaware of the existence of the April 2012 Consent Order. The Land Registry’s position is that the First Objection was made essentially on the ground of abandonment which, having regard to the analysis set out above, is not strictly accurate when viewed in the context of the various stages, to which I have made reference above.

 

39.               In such circumstances, I therefore direct the Chief Land Registrar to cancel the Second Objection dated 2 ^nd July 2012, and to give effect to the Application as if the Second Objection had not been made.

 

DECISION ON COSTS

40.               Under cover of a letter dated 28 ^th March 2013 Messrs Scott Rowe forwarded a Bill of Costs to the Adjudicator, leave having been given by me during the hearing held on 18 ^th March 2013. The total Bill amounted to £8,176.50 including VAT and the Applicant seeks to recover that sum from the Respondents in the Second Reference. Similar considerations seem to apply to the costs issue as those set out in the Original Decision in that the Respondents do not appear to be challenging the principle of the award of costs, and indeed no representations have been received from the Respondents in this regard. Instead they have directed their attention to the variation or set aside of the May 2012 Order.

41.               In such circumstances as a matter of principle I find that the Respondents are liable to pay the costs of and occasioned by the Second Reference, but undoubtedly some of these items will be disputed (although no specific representations have so far been made). Accordingly I order that the Respondents do pay the costs of and occasioned by the Second Reference, but that there be a detailed assessment of the costs to be heard by a costs judge in this jurisdiction, and that the same costs judge deals with the costs issues together arising in relation to both the Original Decision and the Further Decision together.

 

 

Dated this 17 ^th day of May 2013

 

 

 

By Order of The Adjudicator to HM Land Registry