REF/2008/0823

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
SIMON DEREK TATNALL

 APPLICANT

and

LEONARD STUART SILKSTONE
GARY GREVILLE SILKSTONE

RESPONDENTS

Property Address: 3 Croft Cottages, Belchamp Walter, CO10 7AS
Title Number:  EX665968

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at:  Victory House
On: 2 June 2009

Applicant Representation:  In person
Respondent Representation: N/A

___________________________________________________________________________

DECISION

Respondents claiming right of way over Applicant’s land seeking to withdraw from proceedings immediately prior to hearing preserving the right to bring further proceedings alleging the right of way in the future.  Effect of reference by the Chief Land Registrar on the power of a party to withdraw an application or objection without a decision being given on the merits.  Exercise of discretion of Adjudicator to permit such a withdrawal.

1.	For the reasons given below, I shall direct the Chief Land Registrar to give effect to the application of the Applicant dated 21 February 2008 but to note on the registers of both the Applicant’s and the Respondents’ titles that each has rights over the property of the other (including a right of entry onto the property of the other for the purpose of maintenance and repair) granted or confirmed by a Deed of Acknowledgment and Grant dated 18 March 1997 between Peter Robin Lawrence and Derek Lloyd Tatnall.

2.	In this case the Respondents, who are the registered proprietors of 2 Croft Cottages (“No.2”), Belchamp Walter, registered a unilateral notice on 7 February 2008 to protect an alleged right of way over the Applicant’s property, 3 Croft Cottages (“No.3”).  The right of way claimed was on foot for all purposes along a covered passageway from the highway to the back of No.3 and then across No.3’s back garden to a gate in the fence between No.2 and No.3.  The application to register the unilateral notice was supported by a statutory declaration of Geoffrey Derek Silkstone, the father of the Respondents, dated 10 January 2008 which in essence supported a prescriptive right of way.

3.	The matter was referred to the Adjudicator on 18 June 2008.  The Applicant was unrepresented and the Respondents were represented by their father, who was a legal executive for a firm of solicitors, as well as being the occupant of the property. Statements of Case were served.  The Respondents initially appeared to rely solely on a prescriptive right of way, but by letter dated 8 January 2009, the Respondents’ father wrote to the Adjudicator seeking further disclosure on the basis that the Respondents were also claiming a right of way pursuant to section 62 of the Law of Property Act 1925.  That application was dismissed by an order dated 15 January 2009 on the ground, amongst others, that no case under section 62 of the Law of Property Act 1925 had been pleaded and no facts had been pleaded to that time on the basis of which any such case could be raised.

4.	Witness statements had already been served but the Respondents’ father then obtained a further witness statement from a Mrs. Norris as to use of the alleged right of way between 1964 and 1979 when her parents had apparently lived at No.2.  He also wrote to the Adjudicator by letter dated 5 February 2009 giving alleged details of the previous ownership of Croft Cottages, which included the claim that they had been in common ownership until No.1 was sold off in 1948.  No.2 and No.3 remained, he claimed, in common ownership until 5 September 1959, when No.2 was sold off.  Details of the sales including dates and parties were set out.  In due course, a 1959 abstract of title was disclosed, together with the 1959 conveyance to which Mr. Silkstone had referred.

5.	There was no dispute that for many years there had been a gate in the fence between No.2 and No.3, although there was a real dispute as to the extent to which it had been used, and there was no evidence as to when it had first been put into the fence.  According to Mr. Tatnall and his witnesses, the gate had been too overgrown to be used in the lengthy period that they had been at No.3, and indeed some of them had not even noticed that it was there, but according to Mr. Silkstone he had used it regularly since he moved into No.3 in 1997.

6.	No doubt because of Mr. Silkstone’s legal experience, preparation of the trial bundle was entrusted to the Respondents, and in due course he prepared and sent off the trial bundle to the Adjudicator and the Applicant, in the case of the Adjudicator under cover of a letter dated 17 May 2009.  The Adjudicator further received from him on 29 May 2009 the Respondents’ list of issues, chronology and skeleton argument, dated 23 May 2009.  The skeleton argument relied on both section 62 of the Law of Property Act 1925 and on the rule in Wheeldon v Burrows.  The skeleton included extensive citation of authority.

7.	On the same day, the Adjudicator received a letter from Mr. Silkstone dated 28 May 2009.  This indicated that counsel’s advice had been taken; that Mr. Silkstone was hoping to trace a Mr. Mills who had sold off No.2 in 1959 and another witness to events between 1979 and 1982.  He stated that counsel had advised that it would be preferable for the Respondents to obtain evidence from these witnesses and that Mr. Mills’ evidence would be crucial to the case under section 62 of the Law of Property Act 1925.  Mr. Silkstone did not have that evidence, and gave no indication as to why he was only now seeking to trace Mr. Mills or the other witness, or what steps the Respondents had previously taken to find them.  Mr. Silkstone sought permission to withdraw from the proceedings “to the effect that the disputed application referred to the Adjudicator by the Land Registry should be given effect to leaving the way clear for the Respondents to take out court proceedings at a later date if they so choose.”

8.	The letter stated that it was being sent by fax, and I will assume in favour of the Respondents that this happened, although the only copy on file appears to be the hard copy.  A faxed response was requested by Mr. Silkstone “so that I can notify the Applicant of the Respondents’ intentions.”  This application was refused by fax the same day on the basis that the dispute had been proceeding for almost a year and it could well be unjust to the Applicant to permit a withdrawal on that basis.  Mr. Silkstone was advised that he could renew his application at the hearing and could also apply for an adjournment on the grounds that he had been unable to obtain relevant evidence despite making every effort to do so and it would be likely that such evidence would be forthcoming if an adjournment was forthcoming.

9.	On 1 June, the date of the site view, a response was received from Mr. Silkstone putting arguments in favour of either a withdrawal or an adjournment.

10.	I held the site view on the afternoon of 1 June in the presence of the Applicant, Mr. Silkstone and the Second Respondent.  I was told that Mrs. Norris would not be attending the following day as she was caring for her husband and could not leave him.  No further mention of any withdrawal or adjournment was made at this site view, and I was shown all the relevant points which either party wished me to see.  

11.	On the following morning I received a fax from Mr. Silkstone, timed at 21.29 the previous evening, stating that Mr. Mills was 89 years old, was unwell at the present time, and did not wish to get involved in the proceedings.  The letter went on to say that on that basis “the Respondents case is considered to be of a fifty-fifty chance of success unless Mr. Mills were to give evidence at least to the effect that the side access gate was in existence in 1959.  The Respondents therefore wish to withdraw their case due to lack of evidence… The withdrawal has been notified to the Applicant… between 5-45pm and 6-30pm today… However, I understand that the Applicant intends to attend at your offices … on 2nd June in order to obtain clarification from the Adjudicator of the position regarding maintenance and repair and whether the Applicant and his family need to offer a key to the Respondents property.  I would respectfully suggest that this would not be a matter for the Adjudicator to be concerned with as the application initially by the Respondents to the Land Registry was for a right of way across No.3 which has now effectively been withdrawn.”

12.	After referring to the lack of any power on the part of the Adjudicator to grant an injunction, and to the Applicant’s potential claim for costs, the letter continued by stating that having regard to the notice of withdrawal there appeared to be little justification for anyone attending the hearing.

The nature of the reference, the extent of the Adjudicator’s jurisdiction, and the power of a party to withdraw and application or objection after referral to the Adjudicator

13.	References to the adjudicator are under section 73(7) of the Land Registration Act 2002.  This provides that if it is not possible to dispose by agreement of an objection to which section 73(5) applies, the registrar must refer the matter to the adjudicator.  Section 73(5) applies to all objections except those which the registrar is satisfied are groundless under section 73(6).  The adjudicator then has the function, under section 108(1)(a) of the same Act of determining matters referred to him under section 73(7).

14.	Section 109(2) provides for rules to regulate the practice and procedure to be followed with respect to proceedings before the adjudicator and matters incidental to or consequential on such proceedings.

15.	Section 110(1) provides that “In proceedings on a reference under section 73(7), the adjudicator may, instead of deciding a matter himself, direct a party to the proceedings to commence proceedings within a specified time in the court for the purpose of obtaining the court’s decision on the matter.”  There follow provisions as to rules that can be made where such directions are contemplated or made.

16.	The rules that have been made are the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003.  Rule 3 provides that the overriding objective of the Rules is “to enable the adjudicator to deal with matters justly”.  “Matter” is defined by rule 2(1) as the subject of either a reference or a rectification application.

17.	Rule 3(2) provides that dealing with a matter justly includes, so far as is practicable, inter alia, saving expense, dealing with the matter in ways that are proportionate and ensuring that the matter is dealt with expeditiously and fairly.  Rule 3(3) provides that the adjudicator must seek to give effect to the overriding objective when he exercises any power given to him by the Rules or interprets the Rules.  Rule 3(4) requires the parties to help the adjudicator to further the overriding objective.

18.	The rules go on to provide the procedure by which the matter is to be determined by the adjudicator or referred to court, or, in some cases, at the adjudicator’s discretion, adjourned pending the determination of court proceedings if court proceedings have previously been commenced, or if they are commenced without a direction to that effect after the date of the reference.   

19.	There is no provision for an adjudication to terminate because a party notifies the Land Registry that that party wishes to withdraw an application or objection.  In my judgment there is good reason for this, as the matter (the subject of the reference) is no longer in the hands of the Land Registry, but in the hands of the adjudicator.   This appears to me to follow from the wording of sections 73(7) and 108(1)(a) of the 2002 Act, and from the absence of any provision in the Rules involving the registrar before a substantive decision is given by the adjudicator.  It also follows from a consideration of those Rules and of the need for everybody to seek to further the overriding objective to deal with matters justly.

20.	The only possible exception to this is in rule 8, which applies where the adjudicator has directed a party under section 110(1) of the 2002 Act “to commence court proceedings for the court’s decision on the whole of the matter.”  There is a distinction between the wording of rule 8(1), which refers to a direction to commence court proceedings for the court’s decision on the whole of the matter, and section 110(1) of the 2002 Act, which refers to a direction to commence proceedings for the purpose of obtaining the court’s decision on the matter.  A direction to obtain the court’s decision on whether a right of way exists, or whether a beneficial interest is established, is undoubtedly a direction within section 110 in that the rights of the parties which are in dispute are undoubtedly the major part of the matter before the adjudicator, and in my judgment section 110 does not require that the direction should encompass every issue before the adjudicator.  This is also made clear by rule 6 of the 2003 Rules, which provides for the parties to make representations as to the questions the court should determine.

21.	The whole of the matter must include the question whether the Land Registry should give effect to an application in whole or in part, or cancel it.  In such a case, under rule 8(3), prior to its being amended last year, once the adjudicator “has received a copy of the final court order and unless the court directs otherwise, the adjudicator must close the proceedings before him without making a substantive decision.”  This is because where the adjudicator directs that court proceedings are to be commenced for the court’s decision on the whole of the matter, the decision of the court replaces the decision of the adjudicator.  The Land Registry must still await the decision of the court before acting on a withdrawal, and it will be in the hands of the court upon what terms to permit a withdrawal.

22.	This is not a situation that will arise very often as the adjudicator will normally direct only that a party should commence court proceedings to determine the underlying issue (e.g., whether a party has any and if so what beneficial interest in a property).     Further, if the court fails to direct what is to happen to the application to the Land Registry after that question has been referred to it, the rules have now been amended to permit the adjudicator to make the necessary order.  Thus, judges in beneficial interest cases often make final orders which spelled out what rights the parties are to have in the future without directing what should be done with the application and objection which had been referred to the adjudicator, and, especially in matrimonial proceedings, the final order could leave the answer to that question unclear.   
 
23.	In my judgment, the adjudicator has power to direct court proceedings that will determine the whole of the matter referred to him, or only one or more of the substantive issues in it.  It is only where the whole of the matter, including the decision as to what should be done in respect of the application to the Land Registry and the objection to it, is referred to the court that rule 8 has any application.  At that stage, the matter is fully in the hands of the court, and the Land Registry would have to await that decision rather than the decision of the adjudicator.  Once again, however, the matter would be in the hands of the court and not the Land Registry, and the decision whether to permit a party to withdraw without as binding decision, and reserving the right to bring fresh proceedings would be in the hands of the court.  Any attempted withdrawal at the Land Registry without a ruling from the Adjudicator or the court will be ineffective.
 
24.	This approach is also borne out by considering the consequences of the alternative approach.  If a party had the power at any time before a substantive decision was given to bring the proceedings to an end by discontinuing an application or an objection, whether by notice to the registrar or to the adjudicator, then there would be nothing to prevent such a step being taken at any time, even after the hearing had concluded and the adjudicator was in the process of writing a decision, the likely outcome of which had been made clear at the hearing.  

25.	That might not matter if the result of the withdrawal of the application or objection was that the matter was determined once and for all, whether by judicial decision or otherwise.  But that is not always the case.  An application to enter a restriction to protect an alleged beneficial interest may be withdrawn, or submitted to, for a variety of reasons, but it does not follow that the party withdrawing or submitting to the application cannot thereafter claim that there is, or is not, a beneficial interest.  So too, the withdrawal of other applications does not mean that the underlying right that was being asserted is being given up.  It may mean no more than that the party in question does not have the funds for litigation at that stage and does not wish to pursue proceedings.  So too, where proceedings are struck out by the adjudicator, that does not mean that underlying rights are decided and there have been a number of cases where those rights have been re-asserted.

26.	It appears to me to be in accordance both with the letter and the spirit of the rules and with the need to deal with matters justly and for parties to help the adjudicator to deal with matters justly, that a party should not be permitted to avoid an adverse decision by withdrawing an application or objection whether by notice to the adjudicator or to the Land Registry.  The adjudicator has power to decide how to deal with the subject of the reference justly, and this must include the power to decide whether to permit a party to withdraw by discontinuing an application or objection without a judicial determination of the issue.

27.	In many cases, at an early stage of the proceedings, the just approach may well be to permit withdrawal, although the party withdrawing should appreciate that in most cases he or she will then be liable for the costs of the other side.  In other cases, where the matter has been heard and is awaiting the adjudicator’s decision, it is very likely to be unjust to permit such withdrawal.  This is also the case where the matter is very close to being heard.  It is particularly the case where the other party is a litigant in person who has expended considerable time and energy, and incurred considerable stress, in dealing with the case, for which he cannot be compensated in costs.  Even with represented parties, they are unlikely to recover all their costs, and in general, although everything must depend on the facts of the individual case, once a case is close to trial, in my judgment a party should not be permitted to withdraw (other than on the basis of a compromise agreed with the other party) except upon terms that the disputed rights of the other party are conceded and will not be challenged again.

28.	A purported notice of withdrawal, whether given to the Land Registry or to the adjudicator, will be ineffective until the adjudicator has ruled on the terms on which the notice will be given effect to and the terms have been accepted by the party seeking to withdraw.

The notice of withdrawal in the present case

29.	Had it been clear from the notice that the Respondents were wholly abandoning their claim, and were not reserving the right to resurrect it, it would have been possible to accept it on that basis.  However, in view of the letter reserving the right to bring fresh proceedings, this was not clear.  The site view had taken place and the hearing was due to begin that morning.  The Applicant, acting in person, was entitled and bound to appear.  It was plain both from the site view and from the earlier correspondence from both parties that these proceedings had caused considerable stress on both sides.  To allow the dispute to continue unresolved would not have been to deal with the matter expeditiously or fairly.  The Respondents had been warned of this but chose not to appear.  There is no suggestion that the additional evidence that they sought could not have been obtained (insofar as it was obtainable) at an earlier stage had they acted promptly.  Nor was there any indication that it would readily be obtainable in future.   

30.	In my judgment, it would not be right to have exercised my discretion in those circumstances to permit the Respondents to withdraw their objection without a decision on the merits.  They chose not to appear and must take the consequences of their non-appearance.  The Applicant did attend the hearing on 2nd June, and I decided to proceed with the hearing, and deal with the application on its merits.  There was no application for an adjournment, and the Respondents had been warned that I was very unlikely to accept a withdrawal which would leave the Respondents free to commence fresh proceedings.  I concluded that I had power to refuse to permission to withdraw and that I would have that power even if, without my knowledge, the Respondents had communicated that withdrawal to the Land Registry.  I also concluded that in the present case it would be wrong to permit a withdrawal and that the litigation between the parties needed to be brought to a conclusion.

The issues in this case

31.	In those circumstances, I was satisfied that it was just to proceed with the hearing and in the absence of the Respondents and their witnesses I accepted the evidence of the Applicant and his witnesses.  This was the case although his witnesses did not attend, as the reason they did not attend was that it was plain that the Respondents would not be present to cross-examine them.  I was not prepared to accept the contested evidence of the Respondents when they and their witnesses did not attend. 

32.	On the basis of that evidence, it was plain that no case could be made out under either section 62 of the Law of Property Act 1925 or under the rule in Wheeldon v Burrows.  There was also no admissible evidence to support a claim to a prescriptive easement.  I reject the Respondents’ claim that the access route, which passes very close to the Applicant’s rear windows, had been used as of right for all purposes.  I note a conflict between the evidence of Mr. Silkstone that he used it regularly and what was said by the Second Respondent that it was only used when the Applicant and his family, for whom No.3 was a second home, were not there to avoid disturbing them.  It may have been used occasionally when they were not there, although only in one direction as, until the gate was replaced recently, it could only be used to go to No.2 from No.3, as a branch across it would have made it very difficult to use in the opposite direction.  There was also no explanation why it should have been used for all purposes as in general the front door was the most convenient way for Mr. Silkstone to reach the street.

33.	In any event, as their witnesses did not attend for cross-examination, there is no acceptable evidence of user before Mr. Silkstone came to live there in 1997.

34.	There is a right of access for maintenance and repair granted and confirmed by each of the then owners of No.2 and No.3 to each other together with other rights set out in the deed to which I refer in paragraph 1, and I see no reason why this should not be noted on the register in respect both titles.  Part of No.3 is over No.2 and part of No.2 is over No.3.  The Applicant has confirmed that, despite Mr. Silkstone’s contention that the right is limited to maintenance and repair in respect of these flying freeholds, he accepts that No.2 has a general right of access for maintenance and repair over his property.  That appears to me to be correct.

35.	In order to prevent outside intruders gaining access to the rear of No.3, the Applicant put a lock on the gate at the entrance to the covered passageway, and provided Mr. Silkstone with a key.  There is an issue which I do not need to resolve as to whether he was provided immediately with the key, but I am not aware in any event of any maintenance or repair which Mr. Silkstone was prevented from carrying out as a result.  There was also a time in the course of the present dispute when Mr. Silkstone was using the route otherwise than for maintenance and repair and the Applicant or his wife sought to protect their privacy by blocking the gate through the fence.

36.	I was asked by the Applicant at the hearing to give some guidance as to whether he was entitled to keep the gate between the highway and the covered passageway locked, and whether he had to provide a key to Mr. Silkstone.  I was also asked whether the gate in the fence between the two properties could be kept locked when not required.  

37.	It is not the function of the adjudicator to offer advice in relation to particular circumstances.  It has, however, been held that a person entitled to a right of way can only complain of such obstacles as substantially interfere with the user of the way for such exercise of the right as from time to time is reasonably required (see Keefe v Amor, [1965] 1 QB 334, at pp.346 and 347).  The locking of a gate is not necessarily a substantial interference, for example, as here, where the person entitled to use the right of way is given a key.  This has been held to be the case with a block of flats, and indeed it is standard practice in many blocks of flats for common entrances to be locked for security purposes.  There are also cases where locked gates have been held to be actionable disturbances, but I would be surprised if such a conclusion is come to in a case where the right of access is as limited as the present case, there is a plain security issue if a potential burglar can get to the back of the house from the road, and the person with the right of access is given a key.  

38.	I express no view as to whether the way could be shut off, at least while the Applicants are in residence at what is their second home so long as access is provided if reasonably required for maintenance or repair during that period.  Everything may depend on the full facts of the case.

Dated this 15th day of June 2009

By Order of The Adjudicator to HM Land Registry