Johnson v Shaw

Where a conveyance contains both express parcels and a plan stated to be for identification only, the parcels prevail over an inconsistent plan. The plan may assist only where the parcels are insufficient or leave a genuine uncertainty.

Rectification under Land Registration Act 1925 section 82(1)(a) is discretionary. An overriding interest is not a precondition to rectification. Although the statutory policy protecting a registered proprietor in possession is important, the court must weigh all relevant circumstances, including paper title, use of the land, fault and the cause of the registration error.

A payment on account of damages requires evidence from which actual loss can properly be assessed.

The claimant bought and developed a former garage site beside Cornhill Farm. A disputed parcel, called the axe head, was added to her registered title following Land Registry correspondence. The defendants, who farmed Cornhill Farm, claimed that the 1982 conveyance gave Walter Shaw the paper title to that parcel.

The High Court dismissed the defendants’ counterclaim for rectification, upheld the claimant’s claims concerning interference with a right of way and trespass, directed an inquiry into damages, and ordered a payment on account of £7,500.

The defendants appealed. The central issues were whether the axe head passed under the 1968 and 1982 conveyances, whether the register should be rectified, and whether the payment on account of damages was justified.

1. The appeal was allowed unanimously. The parcels in the 1968 conveyance gave a clear verbal description of the land conveyed. The acreage shortfall from the 1920 conveyance was fully explained by the approximately one acre conveyed as back land in 1945. There was no basis for a further exclusion of the axe head. The plan, expressed to be for identification only, could not reduce the land conveyed. The axe head therefore passed in 1968 and then to Walter Shaw in 1982.

2. Applying Land Registration Act 1925 section 82(1)(a), the court held that Walter Shaw did not have to establish an overriding interest under section 70(1)(g) before rectification could be ordered. Consistently with Kingsalton Ltd v Thames Water Developments Ltd [2002] 1 P&CR 81, section 82(3) did not directly govern a court-ordered rectification under section 82(1)(a), but its policy remained highly relevant.

3. The judge had also erred in treating the date of the claimant’s 1998 purchase as decisive for actual occupation. The claimant acquired no legal estate in the axe head until the later registration. In any event, the court would not have found a failure to disclose Walter Shaw’s rights in the Land Registry correspondence.

4. The balance favoured rectification. Walter Shaw had long held the paper title and the defendants had used the land for farming. The claimant knew or ought to have known that her conveyancing documents gave her no paper title to it. The erroneous plan materially induced the Land Registry’s administrative alteration. Those matters outweighed the policy favouring a registered proprietor in possession, the solicitors’ failure to respond to the Land Registry, the claimant’s good faith and the limited delay.

5. The £7,500 payment on account could not stand. Rectification removed any basis for trespass damages, and the evidence did not connect particular interferences with the right of way to any proven loss. The inquiry into damages was not itself set aside, but any award might be nominal. The appellants received the costs of the appeal and three quarters of their costs below.

• Court of Appeal (Civil Division): Allowed the defendants’ appeal, ordered rectification in favour of Walter Shaw, and set aside the payment on account of damages: [2003] EWCA Civ 894.
• High Court, Chancery Division, Manchester District Registry: On 18 November 2002, His Honour Judge Maddocks dismissed the counterclaim for rectification, upheld the claimant’s claims concerning the right of way and trespass, directed an inquiry into damages, and ordered £7,500 on account.