Franks & Anor v Bedward & Anor

An appeal court may restore a cancelled land-registration application with its original priority, even where cancellation has already been implemented. The power is discretionary. The court must balance the successful applicant’s loss of priority against prejudice to persons who acquired interests while the application was absent from the day list. Where possible, restoration should be subject to liberty for affected third parties to apply to vary or set aside the order. If prejudice cannot otherwise be protected, the court may require a fresh application and direct that steps taken in the cancelled application count in the new application.

The applicants applied to the Land Registry for registration of land claimed by adverse possession. Following an objection, the application was referred to the Adjudicator, who ordered its cancellation for procedural default. The Registrar implemented the order by removing the application from the day list.

The applicants later succeeded on appeal, but the application was not restored. Two charges were registered against the respondents’ title before the Registrar was notified of the appeal order. The issue was whether, and on what terms, the High Court could restore the application with its original priority.

1. Jurisdiction and effect of the appeal. The earlier order allowing the appeal necessarily required restoration of the pending application. The absence of an express implementation direction did not prevent the court from determining the appropriate consequential order.
2. Day list and priority. The day list is an index recording pending applications. It is not the Register or part of the Register. A restored application remains an application made when originally received, notwithstanding later re-entry, under rules 15 and 20 of the Land Registration Rules 2003.
3. Discretion on restoration. The court rejected the view that cancellation makes restoration on appeal inherently impossible. Where an intermediate incumbrancer may be prejudiced, restoration with original priority should ordinarily be conditional. The court may adjourn, restore with liberty to affected third parties to apply, or require a fresh application while treating earlier steps as steps in the new application.
4. Stay procedure. The Adjudicator’s power to grant a stay under AR 45 was limited and could not be enlarged by reliance on the overriding objective. Cancellation orders should allow sufficient time for permission to appeal and a stay before implementation; the judge considered that less than two months would generally be inadequate.
5. Order. The application was to be re-entered in the day list with its original priority, subject to liberty to apply by the chargees and any other aggrieved third party, and notification by the Registrar of potentially affected persons.

1. High Court (Chancery Division): On 20 June 2007, Mr Justice Briggs allowed the applicants’ appeal from the Adjudicator’s cancellation order. The present judgment gave consequential directions for restoration of the application.