The Chief Land Registrar v Franks & Ors

On a successful appeal against an adjudicator’s wrongful cancellation of a Land Registry application, the appellate court has power under section 111 of the Land Registration Act 2002 and Part 52.10(2)(a) of the Civil Procedure Rules 1998 to direct retrospective restoration with the application’s original priority date. The power remains available where third-party interests have intervened. Their potential prejudice affects whether, and on what terms, the power should be exercised, rather than the existence of jurisdiction. Restoration will ordinarily be inappropriate where it would rearrange statutory priorities, but exceptional cases remain possible. The appeal was dismissed by a majority; Arden LJ dissented.

The Franks applied under paragraph 18(1) of Schedule 12 to the Land Registration Act 2002 to be registered as proprietors of land occupied adversely and registered to the Bedwards. Following procedural defaults, the adjudicator ordered cancellation of the application, and the registrar cancelled it. The High Court allowed the appeal against cancellation and later ordered restoration of the application from 18 April 2005, after third-party charges had been registered. The registrar appealed, arguing that retrospective restoration was outside the court’s jurisdiction and conflicted with the statutory priority scheme. The central issue was whether the appellate court could make such an order and whether intervening third-party interests affected jurisdiction or only discretion.

1. By a majority, Rimer LJ and Toulson LJ dismissed the registrar’s appeal. Arden LJ dissented and would have allowed it.

2. The appellate jurisdiction under section 111 of the Land Registration Act 2002 and Part 52.10(2)(a) of the Civil Procedure Rules 1998 included power to direct the registrar to undo the cancellation of an application and restore it with effect from the date fixed by rule 15 of the Land Registration Rules 2003. The absence of an equivalent power in the adjudicator’s procedural rules was immaterial.

3. The jurisdiction existed both where no third-party interest had intervened and where such an interest had arisen. In the former case, restoration ordinarily achieved the proper position that would have existed but for the adjudicator’s error. In the latter case, third-party prejudice was relevant to the exercise of the jurisdiction and to appropriate conditions, not to its existence.

4. Rimer LJ regarded retrospective restoration as ordinarily inappropriate where it would rearrange statutory priorities, but accepted that exceptional cases could exist. The court could consider notice, adjournment, undertakings, liberty to apply, or requiring a fresh application where prejudice could not otherwise be remedied. No challenge was made to Briggs J’s exercise of discretion, and the chargees had not sought to vary his order.

5. Arden LJ considered that rule 15 was an exhaustive code governing when an application was made. In her view, neither section 111 nor CPR Part 52.10(2)(a) supplied an independent power to alter the day list retrospectively so as to affect third-party property rights. The registrar’s limited implied power to correct administrative errors did not extend to a third-party-interest case without consent. She would have allowed the appeal.

• Court of Appeal (Civil Division): By majority, dismissed the registrar’s appeal and upheld the restoration order.
• High Court, Chancery Division: Briggs J allowed the Franks’ appeal against the adjudicator’s cancellation order and subsequently ordered restoration of the original application with effect from 18 April 2005: [2010] EWHC 1650 (Ch).
• Adjudicator to HM Land Registry: Ordered cancellation of the Franks’ application following procedural defaults.