Clark v Chief Land Registrar (Chancery Plc v Ketteringham)

A charging order expressed to charge a person's interest in specified registered land may, construed with the evidence recited in the order, charge the land itself rather than merely interests in sale proceeds.

A caution against dealings under the Land Registration Act 1925 does not itself confer priority on the interest it protects. Its function is to ensure that the cautioner receives notice of a proposed dealing and an opportunity to assert priority. Sections 54 to 56, amplified by the Land Registration Rules 1925, provide the complete statutory scheme. Other provisions cannot enlarge the caution's effect.

In Clark v Chief Land Registrar, Mr and Mrs Clark obtained charging orders against the registered proprietors of land and lodged cautions against dealings. A later legal charge was registered without the notice required by the statutory caution procedure. The Chief Land Registrar disputed both the nature of the charging orders and the consequences of the cautions, partly because the Clarks claimed statutory indemnity.

In Chancery PLC v Ketteringham, Mr Ketteringham had protected an estate contract by caution before a later legal charge was registered. He contended that the caution gave his contract priority. The appeals concerned whether the charging orders charged the land and whether lodging a caution itself secured priority.

1. Charging order. The orders charged Mr and Mrs Jarvis's interest in the specified property. Their interest comprised the entire legal and beneficial interest. The evidence recited in the orders confirmed that they were registered proprietors with title absolute and that the order was intended to charge the freehold land. The use of standard forms, or any technical non-compliance with procedural rules, did not alter the clear effect of the orders.
2. Caution against dealings. Sections 54 to 56 of the Land Registration Act 1925 establish the nature and effect of a caution against dealings. A caution requires the registrar to notify the cautioner of a proposed dealing and gives the cautioner an opportunity to assert priority, including by seeking registration subject to a notice protecting the interest. It does not itself confer priority and does not prejudice another person's claim or title.
3. The statutory scheme is not enlarged by sections 20(1)(a), 59(1) or 59(6), section 107(1), or rule 220(3). Those provisions cannot give a caution an effect which sections 54 to 56 do not give it. The reasoning in Barclays Bank Ltd v Taylor was decisive and was adopted. Re White Rose Cottage was compatible with the same conclusion.
4. The same analysis applied to Mr Ketteringham's estate contract. Although the contract was protected by the caution procedure, it did not thereby obtain priority over Chancery PLC's charge. The additional argument under section 107(1) failed.
5. Both appeals were dismissed. The specified costs and taxation orders were made, leave to appeal was refused, and a stay was refused.

• Court of Appeal: dismissed both appeals and upheld the decisions below.
• High Court, Chancery Division: Ferris J decided the charging-order, caution and rectification points in favour of the Clarks; his decision is reported at (1993) Ch 294. The deputy judge, Mr David Neuberger QC, followed that decision and granted Chancery PLC the declarations sought in Chancery PLC v Ketteringham.