R Palmer v Land Registry
| Jurisdiction | England & Wales |
| Judge | Charles George |
| Judgment Date | 02 May 2013 |
| Neutral Citation | [2013] EWHC 1531 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 2013 |
| Docket Number | CO/11702/2012 |
[2013] EWHC 1531 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Charles George QC
(Sitting as a Deputy High Court Judge)
CO/11702/2012
The Claimant did not attend and was not represented
Miss K Yates (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Mr J Sheehan (instructed by Walker Morris) appeared on behalf of the Interested Party
(This transcript has been prepared without the assistance of documents)
THE DEPUTY JUDGE: This is an unusual application for judicial review which is brought by a very determined, disappointed, litigant, Miss Palmer. She is, or was, the owner of property in the Dartford area known as North Tide, Darns Hill, Crockenhill, Swanley. So far as that property is concerned, she entered into a mortgage with The Mortgage Business plc, who are the interested party in the present proceedings, on 30th April 2007, pursuant to which the mortgage company advanced the sum of £560,700.99 to the defendant on an interest-only basis for a term of 20 years.
Miss Palmer fell into arrears in around April 2009. The arrears were capitalised in November 2010 and continued to accrue. This led to possession proceedings being issued by the mortgage company in the Dartford County Court on 8th December 2011. A defence was filed by Miss Palmer on 16th January 2012, which defence is summarised in the following terms by District Judge Greenfield, who had to deal with the matter in that court. I quote from paragraph 8 of his judgment of 30th May 2012:
"The defence, as I have said, apart from being prolix and expressed in terms which are unfamiliar to English law, contained effectively an essential thrust which is that section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 shows that if there was no contract complying with section 2 of the Act, the Claimant has no enforceable rights against the Defendant."
That defence was then the subject of an application to strike it out. The District Judge in his judgment did strike it out in the judgment of 30th May 2012, and that was followed by an application for leave to appeal to His Honour Judge Simpkiss, and on 26th November 2012 he held a hearing. Miss Palmer failed to attend the oral hearing and His Honour Judge Simpkiss held that the appeal was wholly without merit and there was no justification for a stay. The result of all that is that the mortgage company obtained a possession order in respect of the premises.
At that time Miss Palmer had no further right of appeal, but in the meanwhile, in March 2012, she applied to the Land Registry at their Nottingham office to cancel the mortgage charge of 30th April 2007 and which had been registered on 5th September 2007. That matter was dealt with by Mr Christopher Mills, in a three-page decision letter to Miss Palmer, in which he rejected the application. What he said in rejecting the application was as follows:
"You have said that the paper mortgage deed is in fact a contract by deed and that a regulated mortgage contract must comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 or otherwise be null and void. This argument assumes that the charge is a contract within section 2. I have decided that this is not correct because the charge is expressed to be a mortgage deed and has been executed as a deed and the validity of deeds, so far as who must sign them is concerned, is governed not by section 2 of the 1989 Act, but by section 1. You have not made any argument that the charge does not comply with section 2. You assert that 'a contract by deed is a contract' and that since it obliges the lender to make further advances, it must be signed by the lender. As to this second point, this charge only states that it secures further advances, not that the lender is obliged to make any. Some contracts are made by deed in the sense that the parties choose to execute them formally as deeds. This may be done for various reasons, such as to prevent one of the parties from later arguing that an obligation in the contract is not binding because no consideration was given in return for that obligation. However, this does not mean that all deeds must comply with the requirements for contracts. If that was so, Parliament would not have enacted sections 1 and 2 of the 1989 Act in the way it did, ie with different requirements depending on whether the document is a deed or a contract. Nor does it mean that documents which properly construed do not contain a 'contract for the disposition of an interest in land' (section 2(1) of the 1989 Act) must comply with that section. The charge was not a contract to dispose of an interest in land, it was the actual disposition itself.
I note that when you made this application first of all in March 2012 you were arguing that the contract which preceded the charge was void for non-compliance with section 2 and that therefore the charge must be void. I cannot express any view about the validity of the mortgage offer, it is not my place to do so, nor do I need to do so, since even if it was not binding on you at that time, you subsequently executed the mortgage deed.
Having considered your emails and enclosures, I am not satisfied you have made an arguable case for the charge being void owing to its failure to comply with section 2 of the 1989 Act. I have therefore decided to give instructions for both your applications to be cancelled, and that will now be done."
In effect, what Miss Palmer was trying to do by that application was to circumvent the consequence of the proceedings in the Dartford County Court by obtaining from the Land Registry a decision that the mortgage registration was void, which was precisely the matter on which she had failed in the possession proceedings.
Undaunted by all of that, she then started the present judicial review proceedings, seeking to challenge the decision of the Land Registry. The argument put forward is exactly the same argument which was put forward in the defence to the possession proceedings in the Dartford County Court. It appears to be a defence which is being deployed by others around the country who find themselves subject to possession proceedings by mortgage companies, and that in various County Courts, aided apparently by website communication between litigants and persons who are in the unfortunate position of being threatened with dispossession, these people are raising this form of defence. At least one judge, His Honour Judge Butler, in the Blackpool County Court, as recently as 15th January 2013, considered that it was a point which was deserving of a judicial decision and he, in the case of Mortgage Business plc v Mrs Tilly Lamb (claim number 1PB48636) gave permission to appeal and reserved the matter to himself, and as I understand it sometime later this year will be deciding the matter in possession proceedings.
The argument, as I understand it, turns on the wording of section 27 of the Land Registration Act 2002. Section 27, reads as follows:
"(1) If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.
(2) In the case of a registered estate, the following are the dispositions which are required to be completed by registration …"
What is argued by Miss Palmer, and others in her position, is that a consequence — which may well have been an unintended consequence — of section 27 is that mortgage deeds thereby become subject to the provisions in section 2 of the 1989 Act, which reads as follows:
"(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.
(2) The terms may be incorporated in a document either by being set out in it or by reference to some other document."
When this matter came before a Deputy High Court Judge on the papers, the application for judicial review was rejected in forceful terms. I incorporate in this judgment what Mr David Elvin QC said:
"Permission is refused.
Reasons: The claim is unarguable. The Claimant's case is predicated on the contention that section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 applies to a dispositive instrument such as a mortgage deed, whereas it applies to contracts, whether made by deed or otherwise, so would apply to contracts for mortgages but not deeds creating mortgages. The instrument in question is plainly a mortgage deed, intended on its face to be such, and contains the statutory words required to charge the land. It appears to me that the Assistant Land Registrar's decision dated 22.10.12 is unimpeachable. Moreover, this conclusion is supported by the judgment of the Court of Appeal which is binding on this court and the Land Registry in McLaughlin v Duffill [2010] Ch 1 at paragraph 20, approving Target Holdings Ltd v Priestley 79 P&CR 305. I also note what Lord Neuberger MR (as he then was) said at paragraph 27 in Helden v Strathmore [2011] EWCA Civ 542, and Mummery LJ in Eagle Star Insurance v Green [2001] EWCA Civ 1389, which are to...
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