Edward Keith Hopkins v Martin Clive Beacon and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE VOS |
| Judgment Date | 13 April 2011 |
| Neutral Citation | [2011] EWHC 2899 (Ch) |
| Docket Number | Case No: CH/10/0335 |
| Court | Chancery Division |
| Date | 13 April 2011 |
[2011] EWHC 2899 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Vos
Case No: CH/10/0335
MR GERAINT MARTIN JONES (Instructed by Attwells LLP) appeared on behalf of the Appellant
MR ANTHONY TANNEY (Instructed by Birketts LLP) appeared on behalf of the Respondents
Introduction
This is a boundary dispute between neighbours concerning a strip of land comprising an area of only some 2.7 metres by 8.5 metres, amounting to some 23.8 square metres in total ('the strip'). The strip adjoins a pond that separates the parties' gardens and is by all accounts most useful to the appellant for the purpose of maintaining his newly converted granary, and to the respondents for watching wildlife on the pond.
Formally, this is an appeal by Mr Edward Keith Hopkins ('Mr Hopkins') against the decision of Mr Colin Green, the Deputy Adjudicator to HM Land Registry ('the Adjudicator') delivered on 9 February 2010, whereby he directed the Chief Land Registrar to give effect to an application made by the respondents, Mr Martin Clive Beacon and Mrs Janice Ann Beacon ('Mr and Mrs Beacon' or 'the Beacons'), for the strip of land to be added to their registered title under Schedule 6 to the Land Registration Act 2002 ('the Act').
When this dispute between these parties began, Mr Hopkins was acting in person. At the hearing before the Adjudicator, Mr Hopkins was represented by counsel and Mr and Mrs Beacon were acting in person. That is hardly surprising considering the modest value of what is at stake in comparison to the legal fees that have been incurred, but it is peculiarly unfortunate that, whatever the outcome, this case serves as a classic example of what a minefield for the unwary litigant in person is contained in the provisions of Schedule 6 to the Act, and the associated Land Registration Rules 2003 ('the Rules'). In summary, the trap for the unwary seems to me to have arisen from the repeated use of statutory references rather than meaningful phrases to describe the purpose of notices that need to be given under the Act.
In the briefest of outline, four main issues arise for determination in this appeal, as follows:
(1) Whether Mr Hopkins's failure to check the box marked: "I require the Registrar to deal with the application under Schedule 6 paragraph 5 of the Land Registration Act 2002" on his "form NAP", required to be served under the Act and the Rules automatically meant that Mr Hopkins had lost his right to invoke the procedure in paragraph 5 to Schedule 6 of the Act ("paragraph 5"), whereby he could require the Beacons to prove, amongst other things, that they reasonably believed that the strip belonged to them for the ten years up to the date of their application to be registered ("the ownership belief condition").
(2) Whether the test in Mannai Investment Ltd v. Eagle Star Life Insurance Co [1997] AC 749 should have been applied so as to determine that Mr Hopkins's form NAP, read as a whole, left the reasonable recipient in no doubt that Mr Hopkins was requiring the Registrar to deal with the Beacons' application under paragraph 5.
(3) Whether the Adjudicator dealt with certain new evidence adduced after the hearing concluded in a procedurally unfair manner, so that there needed to be a rehearing of his determination that the Beacons had failed to satisfy the Third Condition in paragraph 5(4)(c) of Schedule 6 as to their reasonable belief that the strip belonged to them for the relevant ten-year period ending on 25 June 2008.
(4) Whether the Beacons' claim to the strip should anyway be upheld on the basis that the unchallenged findings of the Adjudicator meant that the Beacons had become the owners of the strip on or before 13 October 2003, under the old law before the Act came into force on that date, by 12 years adverse possession from 13 October 1991 up to that date.
Chronological background
It is necessary to set out the background in more than usual detail because of the detailed nature of some of the arguments advanced.
Mr Hopkins purchased Swallows Barn ('the barn') on 30 January 1987, and was first registered as proprietor under title number SK248257 on 26 January 2004. Mr Hopkins's registered title included the strip. The respondents, Mr and Mrs Beacon, purchased Swallows Farm ('the farm') on 28 December 1989 and were first registered as proprietors under title number SK225943 on 15 March 2002 when they remortgaged the farm. The Beacons' title excluded the strip. On 25 June 2008, Mrs and Mrs Beacon applied by form ADV1 to HM Land Registry for registration of the strip within their title under paragraph 1 of Schedule 6 to the Act. The form ADV1 confirmed that the Beacons intended to rely only on the Third Condition in paragraph 5(4), which included the ownership belief condition. The form ADV1 attached also a statutory declaration by the Beacons. On 11 July 2008 Mr Hopkins wrote to Miss Jane Wood at the Land Registry, saying that he had used the strip on numerous occasions over the years for the maintenance of the adjacent building (the granary) and that the Beacons were making a "totally spurious claim", saying: "They are fully aware, and always have been, this land does not belong to them" and that Mrs Beacon had read up on the internet what is required for a claim and "they will say and do whatever it tells them is required whether or not it is true."
On 17 July 2008 Mr and Mrs Beacon made a further statutory declaration in support of their applications, saying in paragraph 20 that their occupation of the strip had not been with the consent of any person and that "we simply believed the hatched land [the strip] to be part of our garden."
On 7 August 2008 the Land Registry sent Mr Hopkins a B107 notice to a registered proprietor of an application for registration based on adverse possession. This B107 notice was not placed before the Adjudicator until the application for permission to appeal was made after his main decision had been delivered. The notice enclosed Mr and Mrs Beacon's statutory declarations, the Registrar's explanatory notes, and a copy of the Registrar's "Practice Guide IV" and a copy of a blank form NAP.
The B107 notice said in bold letters:
"If you object to the application, or wish to give counter-notice to the Chief Land Registrar, you must do so before 12 noon on 07 November 2008."
The notice continued by saying that:
"If we do not hear from you before then, the application will be completed."
The explanatory notes included the following:
"…this notice is given to you so that you can either consent (which means you accept the applicant's claim), object, or give counter notice to the Chief Land Registrar. The enclosed form NAP should be completed and returned as stated below.
1. Consent
If you consent to the application referred to, please complete and sign the enclosed form NAP and return it using the accompanying addressed envelope. If you wish to consent by e-mail, please ensure that you supply all the appropriate information requested in the form
NAP in your reply. –
2. Objection
If you object to the application you should complete the enclosed form NAP including a written statement as required by rule 19, Land Registration Rules 2003 and return it to the Land Registry office shown in this notice. The written statement must
—quote the title number and the property affected
—state that you object to the application
—state the grounds for your objection. This means that you should tell us the facts and/or the legal reason why what the applicant is claiming is wrong or why what is being claimed would not give the applicant the interest claimed in the property
—give your full name and an address to which communications may be sent and
—be signed by you as the objector or by your solicitor or
conveyancer on your behalf.
If you wish to object by e-mail, please ensure that you supply all the appropriate information requested in the form NAP in your reply.
Please note that a copy of an objection will normally be sent to the applicant or the applicant's legal representative.
Please also note that any communications or supporting documents you supply may also be disclosed to the other parties even if marked 'confidential' or to similar effect.
3. Counter notice
If you require the Chief Land Registrar to deal with the application under paragraph 5 of Schedule 6, Land Registration Act 2002 please complete and sign the enclosed form NAP and return it to the Land Registry office shown in this notice.
If you wish to give counter notice by e-mail, please ensure that you supply all the appropriate information requested in the form NAP.
4. Time limit
If you wish to object or give counter notice it is important that you write to Land Registry office in this notice without delay and that your response is received here by the date shown in this notice. This date allows for a notice period of 65 business days as prescribed by rule 189, Land Registration Rules 2003.
Please note that a copy of an objection will normally be sent to the applicant or the applicant's legal representative.
If you wish to object or give counter notice you must do so before 12 noon on 07 November 2008. If we do not receive a response from you before then the application will be completed.
5. Further information
If you have any queries regarding this notice please contact me quoting the title number. Please note that Land Registry staff are not able to...
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