Property Litigation

ADJUDICATOR TO HM LAND REGISTRY : ADJUDICATORS' POWERS AND DUTIES : CANCELLATION : DISCONTINUANCE : JURISDICTION : UNILATERAL NOTICES : WITHDRAWAL : REFERENCES TO ADJUDICATOR UNDER S.73(7) LAND REGISTRATION ACT 2002 : POWER TO GRANT OR REFUSE APPLICATION TO WITHDRAW FROM REFERENCE : s.73(7) LAND REGISTRATION ACT 2002 :  ADJUDICATOR TO HER MAJESTY'S LAND REGISTRY (PRACTICE AND PROCEDURE) RULES 2003 : s.36 LAND REGISTRATION ACT 2002 : s.35(3) LAND REGISTRATION ACT 2002

The adjudicator to HM Land Registry had discretion to grant or refuse a party's application to withdraw from a reference under the Land Registration Act 2002 s.73(7) upon such terms as he considered just. However, a party could not bring the reference to an end by unilateral withdrawal.

The Chief Land Registrar appealed against a decision ((2010) EWHC 1627 (Ch) concerning the cancellation of a unilateral notice registered by the first and second respondents (S) against the title of the third respondent (T). S and T owned properties next door to one another. S claimed to have acquired a right of way by prescription across T's back garden. S therefore registered a unilateral notice against T's title. T applied for the cancellation of the notice, and S objected. The Chief Land Registrar therefore referred the matter under the Land Registration Act 2002 s.73(7) to the adjudicator to HM Land Registry. However, on the first day of the hearing, S sought to withdraw their case and reserve their right to institute court proceedings in respect of the claimed right of way. The adjudicator found that he had discretion to terminate the reference but declined to do so. He then ruled upon the merits of the matter and decided that S's unilateral notice should be cancelled. S appealed to the High Court, and the judge found that the adjudicator had no discretion and could not allow a reference to be terminated without making a substantive decision. The Chief Land Registrar submitted that S's withdrawal from the reference brought the adjudicator's jurisdiction to an end and he therefore had no right to rule on the merits of the case.

HELD: (1) The Adjudicator to Her Majesty's Land Registry (Practice and Procedure) Rules 2003 set out the practice and procedure to be followed with respect to proceedings before the adjudicator. The rules incorporated the overriding objective in terms similar to the CPR, requiring the adjudicator to deal with the matter justly. However, there was no provision in the rules dealing expressly with the right (if any) of a party to a reference to withdraw or discontinue his case, or as to how the adjudicator might deal with any such claimed withdrawal or discontinuance (see paras 24-25, 29, 43 of judgment). (2) A reference to an adjudicator of a "matter" under s.73(7) conferred jurisdiction upon the adjudicator to decide whether or not the application should succeed, a jurisdiction that included the determination of the underlying merits of the claim. If the adjudicator did not refer the issue to the court for decision, he had to determine it himself, Blackraven Developments Ltd v Sapphire (Harlow) Nominee Ltd Unreported December 21, 2007 and Jayasinghe v Liyanage (2010) EWHC 265 (Ch), (2010) 1 WLR 2106 considered. In the case of a contested application under s.36 to cancel a unilateral notice, the relevant issue was the underlying merits of the unilateral notice. Neither party could bring the reference to an end by his unilateral act, including an express withdrawal of his case. Equally, neither party could be compelled to advance a case that he no longer wished to advance. In those circumstances, it was for the adjudicator in his discretion to decide how to deal with any such withdrawal (paras 37, 41, 48). (3) In the early stages of a reference it might be just to permit withdrawal and terminate the reference, with any appropriate direction to the registrar and order for costs. If the order said no more, that would leave an objector free to revive the same claim. In other cases, particularly where the reference was significantly advanced, to deal with a withdrawal in that way might be unjust. It might still be appropriate for the adjudicator to terminate the reference, but he might consider it just to do so on terms as to costs, and on the basis of a direction to the registrar requiring him to reject any future applications of a specified kind from the withdrawing party. In other cases, particularly those in which the reference was far advanced, such as the instant case, it might be appropriate for the adjudicator to proceed to the substantive hearing, rule upon the merits of the issue and make such order as was appropriate. The adjudicator had therefore approached his jurisdiction correctly, and the narrower approach to the adjudicator's jurisdiction set out by the judge was incorrect (paras 49-51). (4) (Obiter) During a reference to an adjudicator an objector could apply for the voluntary removal of his unilateral notice under s.35(3). However, any removal of the notice by s.35(3) would not automatically bring the reference to an end. The proceedings before the adjudicator would remain alive until he had made a decision disposing of them (para.53).

Appeal dismissed

[2011] EWCA Civ 801
CHIEF LAND REGISTRAR v (1) LEONARD STUART SILKSTONE (2) GARY GREVILLE SILKSTONE (3) SIMON DEREK TATNALL (2011)

CA (Civ Div) (Mummery LJ, Leveson LJ, Rimer LJ) 14/7/2011

“Lawtel” 18.7.11