REF/2015/0129

 

PROPERTY CHAMBER, LAND REGISTRATION
FIRST-TIER TRIBUNAL

 

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

(1) LEA HERSKOVIC APPLICANT

 

 

 

and

 

(2) GRATERO TRADING LIMITED RESPONDENT

 

 

 

 

Property Address: 20 Rossendale Street, London E5 8TA
Title Number: LN6541

 

 

Before: Mr Roger Cohen sitting as Tribunal Judge

 

 

Sitting at: 10 Alfred Place, London W1
On: Tuesday 24 November 2015

 

 

Applicant's Representation: Mr Juan Lopez of Counsel instructed by Public Access

 

Respondent's Representation: Mr Paul Letman of Counsel instructed by Kostick Hanan Herskovic LLP

 

_____________________________________________________________________

DECISION

_____________________________________________________________________

.

The following authorities and text books are referred to in the decision:

Chitty on Contracts 4-004, 4-007

Civil Procedure Rules 3.4 and 24.2

Caston and others v Farnese and another [2015] UKFTT 0629 (PC)

Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67

Doncaster Pharmaceuticals Group Limited v Bolton Pharmaceutical Company 100 Limited [2006] EWCA Civ 661

Federal Republic of Nigeria v Santolina Investment Corporation and others [2007] EWHC 437(Ch)

Hughes and others v Richards [2004] EWCA Civ 266

Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1

Introduction

1                           The Applicant applied to HM Land Registry to register a restriction to protect an alleged beneficial interest in 20 Rossendale Street, London E5 8TA, title number LN6541 (the " Property "), of which the Respondent company is the registered proprietor.

2                           The Respondent denies that the Applicant is entitled to any interest in the Property and applies under Rule 9(3) sub-rules (d) and (e) to strike out the Applicant's case.

3                           For the reasons which follow, I accede to that application insofar as it is made under Rule 9(3)(e ).

The dispute summarised

4                           The Applicant claims that by an express declaration of trust made in 1997, the Respondent holds the Property on trust for the Applicant absolutely. The Respondent denies that the documents relied on by the Applicant from time to time as the express declaration of trust are valid and denies that the Applicant is so entitled. However, if there is a valid declaration of trust the Respondent relies on an agreement made in 2003 whereby the Applicant is said to have renounced her interest in the Property in consideration of another property, 7 Clapton Square and 22 Clarence Mews (" Clapton Square ") being transferred to her. For her part, the Applicant denies that the agreement became operative, says that if it did it was not supported by consideration and that the agreement was vitiated by misrepresentation and/or mistake. The Respondent says that claims in mistake and misrepresentation are statute barred, which the Applicant does not accept. An issue on limitation may also arise.

5                           It is important to note that the Respondent seeks the summary dismissal of the Applicant's reference before disclosure of documents has taken place, without the exchange of witness statements and cross-examination of the witnesses. Thus nothing in this decision amounts to any findings of fact. My task is to assess whether or not the reference should proceed to a hearing following disclosure and at which the witnesses whose evidence has been exchanged can be cross-examined.

6                           My assessment has to consider whether the fair and just course would be to strike out the Applicant's case or to let it go forward given the early stage the reference is at. The first task is to identify the test or tests by reference to which the Applicant's case should be assessed.

Procedural rules

7                           Proceedings in the Property Chamber are governed by The Tribunal Procedure (First-Tier Tribunal) (Property Chamber) Rules 2013 which I shall refer to in this decision as the " Tribunal Rules ". I shall also refer to provisions of the Civil Procedure Rules (the " CPR ").

8                           Rule 9 of the Tribunal Rules is headed "Striking out a party's case". Rule 9 stipulates circumstances in which a case will automatically be struck out, circumstances where the tribunal must strike out the whole or part of the proceedings or case and by sub-rule (3) five grounds upon which

"the Tribunal may strike out the whole or a part of the proceedings or case".

9                           It is clear from the use of the word "may" in Rule 9(3), in contrast to what occurs in the other circumstances envisaged by Rule 9, that sub-rule (3) confers upon the Tribunal a discretion whether or not to strike out if one or more of the grounds in Rule 9(3) are made out.

10                       The Respondent relies on two grounds upon which to strike out the Applicant's proceedings in this reference being:

(d) the Tribunal considers the proceedings or case (or a part of them) or the manner in which they are being conducted, to be frivolous or vexatious or otherwise an abuse of the process of the Tribunal; or

(e) the Tribunal considers there is no reasonable prospect of the Applicant's proceedings or case, or part, succeeding.

Ground (d)

11                       CPR Rule 3.4(2) provides that:

The Court may strike out a statement of case if it appears to the Court:

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the Court's process or is otherwise likely to obstruct a just disposal of the proceedings.

12                       Thus, ground (d) under Tribunal Rule 9(3) is akin to the power to strike out on the grounds in CPR 3.4(2) and in particular under sub-rules 3.4(2)(a) and (b).

13                       At paragraph 3.4.1 of Civil Procedure the learned editors state that:

"Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill-founded and other cases which do not amount to a legally recognisable claim or defence."

14                       In Hughes v Richards the Court of Appeal dismissed an appeal against the refusal of the High Court Judge to strike out or dismiss a claim for negligence in the performance of professional duties. Peter Gibson LJ, with whom Jacob LJ and Sir William Aldous both agreed, said at [22]:

" ... the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out"

(see Barrett v Enfield London Borough Council [2001] 2 AC 550 at P.557 per Lord Browne-Wilkinson).

15                       The case for the Respondent is that the Applicant's case is unwinnable and is therefore an abuse of the process of the Tribunal. Given that the wording of Tribunal Rule 9(3)(d) differs from CPR 3.4(2), it might be said that a claim that is unwinnable is a frivolous claim in terms of Tribunal Rule 9(3)(d) rather than abusive of the process.

Ground (e)

16                       The CPR provides for summary judgment in Part 24. CPR Rule 24.2 states that:

"the Court may give some judgment against a claimant or defendant on the whole of a claim or on a particular issue if:

(a) if it considers that:

(i) The claimant no real prospect of proceeding on the claim or issue; or

(ii) the defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at trial."

17                       Ground (e) in Tribunal Rule 9(3) is akin to the jurisdiction in the court to give summary judgment. It will be noted that the Tribunal Rules do not specifically direct that the applicant for summary judgment has to show that there is no other compelling reason why the case or issue should be disposed of at trial. This distinction between the CPR and Tribunal Rule 9(3) (e) was noted by Judge Owen Rhys in Caston and others v Farnese and another [2015] UKFTT 0629 (PC) at [5]. There was no application in Caston under Tribunal Rule 9(3)(d).

18                       This decision was not cited to me and it came to my attention only when drafting this decision. Judge Owen Rhys in Caston contrasted CPR 24 with Tribunal Rule 9(3)( e) and said this

"It must be doubted, in my view, that despite these semantic and other differences there was any intention to require a radically different test. The jurisprudence that has grown up around CPR 24 is extensive and the principles well-known. It would be right, in my judgment, to use the cases decided under Part 24 as strong guidance as to the proper approach to an application under Rule 9(3)( e). If anything, the requirement of a "reasonable" prospect sets a lower threshold than the requirement of a "real" prospect, but for the reasons I have given I shall treat the tests as being in substance identical."

19                       In Doncaster Pharmaceuticals Group Limited and Others v Bolton Pharmaceutical Company 100 Limited [2006] EWCA Civ 661 the Court of Appeal considered CPR 24. The leading judgment was given by Mummery LJ with whom Longmore LJ and Lewison J. both agreed. Mummery LJ said at[4] :

"Summary judgment procedures, which are designed for swift disposal of straightforward cases without trial are only available where the applicant demonstrates that the defence (or the claim, as the case may be) has no "real" prospect of success and if there is no other compelling reason why the case or issue should be disposed of at a trial: CPR Part 24.2. Thus, without the assistance of pre-trial procedures, such as disclosure documents, and without the benefit of trial procedures, such as cross-examination, the court's function is to decide whether the defendant's prospect of successfully establishing the facts relied on by him is "real" that is more than "fanciful" or "merely arguable"".

20                       Mummery LJ said at[17] -[18]:

"It is well settled by the authorities that the court should exercise caution in granting summary judgment in certain kinds of case. The classic instance is where there are conflicts of fact on relevant issues, which have to be resolved before judgment can be given. A mini-trial on the facts conducted under CPR Part 24 without having gone through normal pre-trial procedures must be avoided, as it runs a real risk of producing summary injustice.

In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case."

21                       The final authority to which I was referred was the decision of Lewison J in the Federal Republic of Nigeria and Santolina Investment Corporation and Others [2007] EWHC 437 (Ch). In a claim to recover assets exceeding £10,000,000 alleged to be amassed through corruption, Lewison J gave guidance as to how an application for summary judgment ought to be dealt with.

At paragraph 4 he said this:

"For present purposes I summarise the relevant [principles] as follows:

(i) The court must consider whether the defendant has a "realistic" as opposed to a "[fanciful]" prospect of success: Swain v Hillman [2001] 2 All ER 91;

(ii) A "realistic" defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED&F Man Liquid Products v Patel [2003] EWCA Civ 472 at (8);

..."

22                       In Three Rivers DC v Bank of England (No3) [2003] 2 AC 1 Lord Hobhouse of Woodborough said at [158] that " the judge is making an assessment not not conducting a trial or fact-finding exercise. Whilst it must be remembered that that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis is may be necessary but the "bottom line" is what ultimately matters"

23                       To progress that assessment, I turn to the facts alleged and the documents.

The Facts

24                       The applicant is a married woman. Her husband is Mr Israel Herskovic also known as Mr Israel Taub. Mr Israel Herskovic is the brother of Mr Herman Herskovic, to whom I refer below.

25                       In 1964 the Property was purchased by a company controlled, according to the Applicant, by her husband. It is the Applicant's case that her husband and Herman Herskovic were in partnership in various property investments from approximately 1972.

26                       On 23 July 1997, the Property was transferred by Overbrook Limited to the Respondent in consideration £60,000. On 30 July 1997, the Respondent was registered as the proprietor of the freehold title to the Property.

27                       It is said on behalf of the Applicant that she became beneficially entitled to a 100% interest in the Property by reason of an express declaration of trust in writing.

28                       Three forms of that declaration of trust were produced to me, referred to by Counsel for the Respondent as versions A, B and C. In chronological order, there were two versions of the declaration of trust each dated 15 June 1997 (referred to as versions B and C) and the third version dated 30 July 1997 (referred to as version A).

29                       Version B was in terms that Respondent held the beneficial interest of the Property "as nominee as bare trustees for the Applicant".

30                       The second version, version C is headed "Deed of Trust" was in terms that the Respondent was the registered proprietor of the Property which "they hold on trust for and as nominee of the Applicant".

31                       On 16 June 1997, Herman Herskovic wrote to Cypronavas Limited of Limassol, Cyprus describing himself as the beneficiary of the respondent and the grantor of a trust deed to Cypronavas Limited dated 3 October 1995 (which was not produced at the hearing) and giving directions and instructions to the director and secretary of Gratero Trading Limited to execute all deeds and documents in relation to the above Property as may be required to vest the legal estate in the Property in the beneficiary (the Applicant ). This was to comply with the deed of trust dated 15 June 1997 made by Gratero Trading Limited whereby it was declared to hold the Property at 20 Rossendale Street on trust for its nominee, the Applicant.

32                       Both versions B and C of the declaration of trust, each dated 15 June 1997 pre-date the transfer of the Property to the Respondent.

33                       Also on 30 July 1997, the third version of the declaration of trust was, on the Applicant's case duly entered into. This version is in the same form as Version C.

34                       The Respondent's case in relation to the three declarations of trust is that the existence of the three co-existing versions is odd and calls for an explanation which he Applicant has not proffered. The Respondent submitted that I could not be satisfied that these documents could be relied upon. On behalf of the Applicant it was submitted that the deeds co-exist and that the Tribunal would need evidence to disregard or to strike through one version and that it was an unfair criticism of the Applicant to say that she had not provided any explanation for the existence of the three versions.

35                       Given that this is an application to strike out rather than the hearing, I have concluded that, on its face, version A appears to be a declaration of trust made by the registered proprietor of the Property on the same day as the proprietor's title was registered at HM Land Registry. On its face, the document is capable of being a valid express declaration of trust. In saying that, I make no finding of fact as to the status of the deed. My assessment for present purposes is that this document may be capable of founding the Applicant's claim to a beneficial interest.

36                       On 4 March 2003 the Applicant applied to HM Land Registry to register a caution against dealings in respect of the Property. Her application contained a statutory declaration that she was the beneficiary of a deed of trust for the whole of the Property made between the Respondent as trustees and herself as beneficiary. Mr Herman Herskovic wrote to the Land Registry in response to express his surprise that the Applicant had stated that she was the beneficiary of a deed of trust. He said that he was not aware that such a trust existed and that such a trust did not exist. He objected to the registration of the caution. In further correspondence, Mr Herman Herskovic informed the Land Registry that the Respondent is a company registered in Cyprus and that the director and secretary of the Respondent had not signed the form of declaration of trust. On 11 July 2003 the Land Registry wrote to Mr Herman Herskovic to say that there was a dispute between the Respondent and the Applicant which, if not agreed, would have to be determined either by the Solicitor to HM Land Registry or, more probably, by the High Court. Those matters are not issues suitable for determination on an application to strike- out.

37                       What then occurred is as follows. On 22 July 2003 an agreement was entered into between the Applicant and her husband and Mr Herman Herskovic. I shall refer to this as the " Agreement ". The Agreement stipulated that in consideration of the transfer of Clapton Square, the Applicant and her husband renounced any interest that they may have had in the Property. Further, they declared that neither the Applicant nor her husband had any interest in various companies including Farquote Limited and Gratero Limited. The Respondent submitted that this latter company should be read as the Respondent company itself. The Applicant did not take any issue with this and I accept that reading.

38                       On 29 July 2003 the Applicant signed a Land Registry form of application, applying to withdraw her caution over the Property.

39                       On 30 July 2003 the Applicant wrote to the Land Registry stating that:

"kindly note that we are trying to reach agreement but in the meantime we are taking legal advice on the matter and we will be in contact with the Land Registry with further developments" .

40                       On 8 August 2003 Farquote Limited transferred to Clapton Square to the Applicant.

The current application

41                       It was on 22 August 2014 that the Applicant applied to the Land Registry to enter a restriction against the title to the Property on grounds that the Applicant is the beneficial owner of the whole of the Property by reason of a deed of trust.

42                       The Respondent's solicitors wrote to the Land Registry to object to that application. The grounds for objection were first that the existence of the Deed of Trust dated 30 July 1997 (Version A) was disputed. Secondly, the Respondent said that if there was a trust, the Applicant had renounced her beneficial interest by the Agreement.

43                       On 11 March 2005, the Respondent's solicitors wrote following the reference of the application to the Tribunal. In that letter, the solicitors said:

"Our client considers your application to be fraudulent and the trust you seek to rely on was not entered into by or on behalf of our client. ... our client also reserves the right to make a criminal complaint of perjury if it is established that you presented the Tribunal with a forged document and false evidence."

The Agreement

44                       On the face of it, by the Agreement the Applicant released her beneficial interest in the Property in exchange for Clapton Square which was transferred to her. However, the Applicant takes a number of points, as follows:

44.1            There was no consideration to support the Agreement; but if there was

44.2            The Agreement did not come into operative effect; but if it did, it is vitiated by

44.3            Mistake; and/or

44.4            Misrepresentation.

45                       In response at least to mistake, the Respondent relies on a case in mistake being statute barred.

46                       I shall now consider in turn each of the Applicant's grounds for challenging the Agreement, not by way of mini-trial but to assess whether or not each ought to be considered at a full hearing.

Consideration

47                       The traditional definition of consideration concentrates on the requirement that "something of value" must be given and accordingly states that consideration is either some detriment to the promisee (in that he may give value) or some benefit to the promisor (in that he may receive value) (see Chitty on Contracts para 4-004).

48                       Chitty adds at paragraph 4-007 that "the traditional definition... has more support in the authorities than any other definition".

49                       In Cavendish Square Holding BV v Talal el Makdessi [2015] UKSC 67 at [296] Lord Mance said:

"Where parties intend to enter into legal relations, it does not require much to constitute consideration. Some benefit must be conferred both ways; but the benefit provided by the promisor does not have to be for the promisee personally; it may be for some third party whom the promisee wishes to benefit... any act or promise in exchange for an act or promise can constitute consideration".

50                       The agreement recorded that it was made "in consideration of the transfer of 7 Clapton Square and 22 Clarence Mews London E5, Land Registry title number LN91267".

51                       A company search suggests that the only shareholder of Farquote Limited was Herman Herskovic.

52                       The Applicant says that the Agreement was not made for consideration. That contention was made in two parts. First, it is said that Farquote Limited held Clapton Square as nominee for the Applicant. Therefore, the transfer from Farquote Limited was a transfer only of the legal estate to the beneficial owner. Accordingly, no consideration passed under the Agreement. There is no evidence to support the contention that Clapton Square was held by Farquote Limited on trust for the Applicant save for the assertion that it was in 1995 that Israel Herskovic transferred Clapton Square to Farquote Limited as trustee. On the assumption that Farquote Limited was the legal owner of Clapton Square on trust for the Applicant absolutely, would there have been consideration for the Applicant's renunciation of her (alleged) beneficial interest in the Property pursuant to the Agreement?

53                       The first point is that it matters not that the proprietor of Clapton Square was not Herman Herskovic but Farquote Limited. Even if, as the Applicant says, contrary to the documents that Herman Herskovic did not own the issued share in Farquote Limited, the Agreement is correctly construed as containing a promise by Herman Herskovic to procure the transfer from Farquote Limited to the Applicant of the legal estate in Clapton Square. A promise by Herman Herskovic to procure the transfer of Clapton Square is, subject to the second point, a detriment to the promise.

54                       Secondly, the issue arises whether where X is the registered proprietor of property held on trust for Y absolutely, the promise by X to transfer the legal title to Y can amount to good consideration for a promise by Y.

55                       The transfer to Y of the legal estate giving Y absolute control of the property is of value to Y and therefore consideration for a promise given by Y. No authority was cited to me on this point. However, it may well be of convenience for Y to be the registered proprietor of the legal estate in dealing with the property including raising finance on the security of the property. It may only require a straightforward form to be completed, but until it is done, there is scope for delay and complication in the affairs of Y.

56                       It follows that if Farquote Limited held Clapton Square on trust for the Applicant absolutely, the promise by Herman Herskovic to procure the transfer of freehold of Clapton Square to the Applicant would be good consideration for the Applicant's renunciation of any beneficial interest in the property, in Farquote Limited or the respondent company, pursuant to the Agreement.

Operative effect

57                       The next objection taken by the Applicant to the Agreement is that it is not of operative effect. This submission is based on the following. The Agreement stated that it "would operate after the cautions have been removed on... the Property". The Applicant applied for the withdrawal of the caution over the Property on 29 July 2003.

58                       The Agreement continued:

"1. Lea Herskovic must take independent legal advice before signing this document and this must be confirmed by her that she has done so.

2. This Agreement becomes valid only after it has been signed by Mr and Mrs I Herskovic and by H Herskovic of 10 Overlea Road".

59                       The Agreement continued:

"I hereby confirm that I have taken independent legal advice".

60                       Below that appear the signatures of the Applicant and her husband and of Herman Herskovic together with the signature of Nigel S Hanan, a solicitor and also another signature of a solicitor. I was told by Counsel for the Respondent that the other signature was that of Geoffrey Niman.

61                       The Applicant submits that she did not receive legal advice at the date of the Agreement. However, the Applicant had no explanation for the following:

(i) she signed the Agreement below the confirmation that she had taken legal advice; and

(ii) the comment in her 30 July 2003 letter to HM Land Registry that "we are taking legal advice on the matter".

62                       I am not in a position to make a finding of fact as to what independent legal advice the Applicant did receive. However, my assessment is that, on its true construction, the Agreement was conditional upon:

(i) the Applicant confirming that she had received independent legal advice (which confirmation she gave); and

(ii) the signature of the Agreement by the parties, which is not an issue.

63                       Accordingly, the Agreement is, in the words of the Applicant, of operative effect.

Four further grounds of challenge

64                       In her statement of case, the Applicant challenged the enforceability of the Agreement on four grounds being:

(a) unilateral mistake;

(b) misrepresentation;

(c) duress; or

(d) undue influence.

However, in her response to the Respondent's application to strike out, the Applicant withdrew her case on duress and undue influence relying now only on mistake and misrepresentation. Neither ground of challenge has been expressed with any clarity. However, the case advanced on each ground and my assessment of it is as follows:

Mistake

65                       The Applicant's case has been developed as follows:

65.1            the Applicant entered into the Agreement believing that its terms would not remove her interest in the Property;

65.2            the Respondent knew that the Agreement sought to remove the Applicant's interest;

65.3            alternatively the Applicant mistakenly believed that the Agreement was operative, when it was not operative and was made for consideration, when it was not made for consideration;

65.4            the Respondent must have known that the Applicant had made a mistake but did not know what the mistake was;

65.5            the mistake renders the contract void.

66                       My assessment is that there is no evidence (save for the Applicant's statement of case in this reference) to support the contentions that the Applicant's belief was that the Agreement would not remove her interest in the Property much less that the Respondent knew that to be the case. That is the critical point. Whatever the Applicant may or may not have believed there is no evidence to suggest that the Respondent knew that to be the case and moreover the Applicant does not explain why the Respondent should have been aware of this. Further, in circumstances where there was consideration for the Agreement, which was of operative effect, the alternative ground for alleging mistake is not arguable.

Misrepresentation

67                       The Applicant's case on misrepresentation is as follows:

67.1            the Respondent made a full statement of fact to the Applicant regarding the Agreement which the Applicant subsequently relied on in signing the Agreement;

67.2            the full statement was the representation regarding consideration for which the 2003 Agreement was misstated to be made.

68                       In submissions, I asked Counsel for the Applicant to identify the representation upon which he relied. Counsel submitted that the terms of the Agreement were ambiguous and the ambiguity could itself be a representation. I cannot accept that submission. As a matter of construction, the Agreement was not ambiguous but provided for the Applicant to renounce her interest in the Property. As with the case of mistake, having concluded that there was consideration for the Agreement, the argument that there was a misrepresentation that the Agreement was supported by consideration is unsustainable.

Limitation

69                       The Respondent contends that any claim by the Applicant founded on a mistake is statute barred under the Limitation Act 1980. As there is no basis for the claim based on mistake, I would not consider the question of limitation further in this decision.

Standing back

70                       Standing back, the Applicant's grievance seems to be that she exchanged her beneficial interest in the Property for no more than a transfer of a legal estate in Clapton Square, to which she was beneficially entitled. I am not in a position on this Application to decide:

(i) whether the Applicant ever had a beneficial interest in the Property; or

(ii) whether the Applicant was beneficially entitled to Clapton Square.

71                       If the Applicant never had a beneficial interest in the Property then she can have no complaint. If the Applicant had such an interest, but never had any entitlement to Clapton Square until it became the subject of the Agreement, then she must live with the deal that was then done. It would seem that the property swap was to mutual advantage. The Applicant may now regret that she will not stand to gain from any development opportunity that now presents itself in relation to the Property. However, that is the effect of the Agreement.

72                       If the Applicant swapped a beneficial interest in the Property for legal ownership of Clapton Square, a property in respect of which she already was the beneficial owner, then the facts might well amount to a situation in which the Tribunal cannot relieve the Applicant of the consequences of a bad bargain. I record that this was not the way in which the case was put on behalf of the Applicant.

73                       I have also considered whether, on summary basis, there are facts to be found which would influence the outcome of the reference such as a full hearing must be held. The conclusion to which I have come follows the construction of the documents and the case of the Applicant as stated in writing and in submissions. I have sought to assess the whole of the case and form a conclusion, not based on a fact finding exercise of the "bottom line" that ultimately matters.

74                       The Applicant has cast and re-cast her case first in her original application to HM Land Registry in 2003 and then in the proceedings in this reference. I am satisfied that the Applicant has had every reasonable opportunity to put forward a clear, factual case as to why the Agreement should be disregarded. This the Applicant has failed to do.

75                       That "bottom line" is a conclusion that there is no reasonable prospect of the Applicant's case succeeding.

76                       For the reasons given above, I decline to strike out the Applicant's case on the basis that it is frivolous, vexatious or otherwise an abuse of the process of the Tribunal. None of those epithets seem to me to be apt. I do however conclude that there is no reasonable prospect of the Applicant's case succeeding in the sense that this should be understood under Tribunal Rule 9(3)(e ).

77                       Accordingly, pursuant to Tribunal Rule 9(3)(e) I order that the Applicant's case is struck out. It follows that the Chief Land Registrar should not give effect to the Applicant's application to register a restriction, which application should be cancelled.

Costs

78                       Subject to any submissions made within seven days from the date on which this decision is issued, to the contrary, I order that the Applicant pay the Respondent's costs as the reference to be assessed on the standard basis. On 23 November 2015 a statement of costs was filed on behalf of the Respondent. If the amount of costs is not agreed within 14 days either party may apply for further directions as to assessment.

 

Dated this 29 ^th day of December 2015

 

 

 

 

 

BY ORDER OF THE TRIBUNAL

Roger Cohen sitting as a Tribunal Judge