Eric Walker and Others v Peter Charles Burton and Another
| Jurisdiction | England & Wales |
| Judge | Mr Jeremy Cousins |
| Judgment Date | 17 April 2012 |
| Neutral Citation | [2012] EWHC 978 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: 2007/1124 Appeal Ref: Ch2011/0158 |
| Date | 17 April 2012 |
[2012] EWHC 978 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE ADJUDICATOR TO HM LAND REGISTRY
Mr Jeremy Cousins Q.C.
(Sitting as a Deputy Judge of the Chancery Division)
Case No: 2007/1124 Appeal Ref: Ch2011/0158
Mr Paul Stafford (instructed by Messrs Blakemores, of 40, Great Charles Street, BIRMINGHAM B3 2AT) for the Appellants
Mr Jeffrey Littman (instructed under the Bar's Public Access Scheme) for the Respondents
Hearing dates: 23rd, 24th November, 11th December 2011,16th January 2012
Mr Jeremy Cousins QC:
INTRODUCTION
This is an appeal by Mr Eric Walker and others ("the Appellants") against the decision ("the Decision") of a deputy adjudicator to Her Majesty's Land Registry, Mr Simon Brilliant, dated 10 th December 2010. The appeal is brought with the permission of Briggs J under an order dated 30 th June 2011.
In September 2000 Mr Peter Burton and Miss Susan Bamford ("the Respondents") bought Over Hall Farm ("the Hall"), which is just to the north of the village of Ireby, in Lancashire, from Mr and Mrs Stephen Brown. The transfer, dated 1 st September 2000, was in respect of 39.25 acres of Over Hall, including the Hall itself. There was no express transfer at this time, in respect of either the lordship or of the Fell with which this case is concerned.
On 28 th September 2000, the Respondents were registered as freehold proprietors of the Hall. On 10 th October 2003, the Respondents were registered as first proprietors of the lordship or manor or reputed lordship or manor ("the Lordship", "the Manor") of Ireby ("the Lordship Title"). On 21 st February 2005 the Respondents were registered as first freehold proprietors of the Ireby Fell ("the Fell", "the Fell Title"). The Fell consists of some 362 acres of moorland, and it is registered as common land. The Proprietorship Register in respect of the Fell Title described the Respondents as "being Lord of the Manor of Ireby".
On 9 th May 2007 the Appellants, who are all residents of the village of Ireby, made an application ("the Application") under paragraph 5(a) of Schedule 4 of the Land Registration Act 2002 ("the 2002 Act", "the Schedule") to alter the register by closing the title of the Respondents in respect of both the Lordship and Fell Titles. A letter of objection was written on behalf of the Respondents by the solicitors then acting for them, Messrs Henmans. The dispute was then referred to the adjudicator on 30 th August 2007. Subsequently the Respondents applied to strike out the application on the basis that the Appellants had no locus standi because they claimed no rights themselves to the Fell or the Lordship. This question was ordered to be tried as a preliminary issue, the hearing for which came before the adjudicator, Mr Edward Cousins in January 2009. In a reserved decision dated 13 th March 2009, and re-dated 14 th May 2009, he determined that it was not necessary for an applicant seeking to rectify the register to demonstrate locus standi, and he directed that the case should proceed to a full hearing. There was no appeal against that decision
Following the subsequent full hearing, by the Decision the deputy adjudicator acceded to the application in respect of closing the Lordship Title, but directed that the Application be cancelled in respect of the Fell Title. The Appellants maintain that the deputy adjudicator was right to close the Lordship Title, but wrong to decline to close the Fell Title. The Respondents do not challenge the Decision as to the closure of the Lordship Title, but they maintain that the deputy adjudicator was right to decline to order the closure of the Fell Title.
For the avoidance of doubt, throughout this judgment I shall refer to the parties respectively as the Appellants and Respondents, as indicated above, although they were differently described throughout the proceedings before the deputy adjudicator.
THE CASE BEFORE THE DEPUTY ADJUDICATOR
The deputy adjudicator gave directions, on 19 th November 2009, for the preparation of the case below for trial. These included a requirement that the Respondents should serve a Consolidated Statement of Case which might anticipate and deal with points taken by the Appellants in earlier statements of case, and this was to be followed by a Consolidated Statement of Case from the Appellants which should, amongst other things, set out their case on the Fell. This direction was necessary because the pleadings, by this time, had become extremely numerous and cumbersome.
Ultimately the hearing below took up some ten days of oral hearing; the trial bundle consisted of some fourteen volumes, and there was a site view. Although oral submissions were made to the deputy adjudicator, time was insufficient for Mr Littman (counsel for the Respondents) to conclude, so that he completed them in writing. To these Mr Stafford (counsel for the Appellants) replied in writing.
Many more matters were in issue before the deputy adjudicator than were argued on the appeal before me. The primary case for the Respondents below was that the Lordship had existed since the late 11 th century, and that by the early 17 th century it was with the Tatham family who built the Hall. Thereafter, they maintained, the ownership of the Lordship passed with the Hall to the Marton family in 1737. They contended that subsequently it passed from the Martons to Mr Harry Fawcett in 1947, then in 1953 to his daughter, Mrs Catherine Bracken, thereafter by a conveyance in 1995 to Mrs and Mrs Brown, and finally, by a further conveyance of 21 st September 2004 to the Respondents themselves.
The deputy adjudicator set out, in a very helpful table at paragraph 25 of the Decision, a history of the express dispositions of the Lordship, the Fell and Over Hall. This demonstrated that the only express disposition of the Fell since 1892 was contained in a Settlement of 1892 itself, whereas the Lordship had been the subject of express disposition in each of the transactions mentioned, save for in the 2000 transfer of the Hall.
The Respondents advanced alternative cases in relation to the Lordship based upon adverse possession, prescription, and on the grounds of proprietary estoppel. All of these alternative cases were rejected by the deputy adjudicator; see paragraphs 66–69 of the Decision.
Before the deputy adjudicator the Appellants argued that the registration of the Lordship and Fell Titles amounted to a mistake, so that the respective Titles should be closed. They relied upon paragraph 6(2) of the Schedule asserting that an alteration to the register should be made because the Respondents had, by a lack of proper care, caused or substantially contributed to the mistake which led to registration, and alternatively they asserted that it would be unjust for the alteration not to be made. (I deal later in this judgment with the question of whether the Appellants' case below had raised issues as to the Respondents' being in possession of the Fell at material times, and whether a lack of care had contributed to mistaken registration. The question of whether the point as to possession was controversial, or was conceded below by the Appellants, was argued before me at some length on the hearing of the appeal.)
Since the provisions of the Schedule to the 2002 Act were very significant in the deputy adjudicator's decision, and are similarly important on this appeal, it is convenient at this stage to set them out. Paragraph 5 provides that:
"The registrar may alter the register for the purpose of—
(a) correcting a mistake,
(b) bringing the register up to date,
(c) giving effect to any estate, right or interest excepted from the effect of registration, or
(d) removing a superfluous entry."
Paragraph 6 provides that:
"(1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.
(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to land in his possession unless—
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.
(4) In sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land."
The Appellants advanced below three positive cases, in the alternative, as what became of the Lordship:
(1) That it remained appendant to the original caput of the corporeal Manor which is today the site of Netherbeck House and had devolved by conveyance to Miss Scott and the late Miss Chamberlin. ("The Netherbeck Case", as it was described in the Decision.)
(2) That it was held by the Knights of St John of Jerusalem since before 1290 and continued to be so held until the Grand Prior of that Order conveyed it to the Appellants and the Respondents as tenants in common on 4 th December 2008, the Respondents demurring thereto, and that if such conveyance was ineffective, then the Knights continued Co hold the Lordship. ("The Knights' Case", as it was described in the Decision.)
(3) That the Lordship has ceased to exist, or alternatively has passed to the Crown.
The significance of the year 1290, mentioned above,...
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