The Chief Land Registrar v Silkstone & Ors

A party cannot unilaterally terminate a reference under section 73(7) of the Land Registration Act 2002. The adjudicator’s jurisdiction includes deciding the underlying merits of the claim supporting the objection. A party cannot be compelled to advance a case it no longer wishes to pursue, but withdrawal is subject to the adjudicator’s discretion under the overriding objective. The discretion depends on all the circumstances, especially the stage reached and the reasons for withdrawal. Early withdrawal may be allowed. At a later stage, the adjudicator may impose terms, restrict future applications under rule 41(2) of the adjudication rules, or determine the merits. Voluntary removal of a unilateral notice under section 35(3) remains available during the reference, but does not itself terminate the proceedings.

The Chief Land Registrar appealed against Floyd J’s dismissal of an appeal from a deputy adjudicator’s decision. The reference arose after Simon Tatnall applied under section 36 of the Land Registration Act 2002 to cancel a unilateral notice protecting the Silkstones’ claimed right of way. The Silkstones objected under section 73, but after preparing for the substantive hearing they sought to withdraw their case while reserving the right to pursue the same claim elsewhere.

The adjudicator refused to terminate the reference and decided the merits, directing cancellation of the notice. Floyd J held that the adjudicator’s jurisdiction continued and dismissed the Silkstones’ appeal: [2010] EWHC 1627 (Ch). The central issue was whether withdrawal automatically ended the reference, or whether the adjudicator retained a discretion to determine how the reference should proceed.

The appeal was dismissed unanimously. Rimer LJ gave the leading judgment, with Leveson and Mummery LJJ agreeing.

1. A reference under section 73(7) of the Land Registration Act 2002 gives the adjudicator jurisdiction to decide whether the application should succeed, including the underlying merits of the claim which prompted the application. Unless the adjudicator directs a party to commence court proceedings under section 110(1), he must determine the issue himself.
2. Neither party can unilaterally bring the reference to an end by withdrawing an application, objection or case. Equally, a party cannot be compelled to advance a case which it no longer wishes to pursue. The withdrawal therefore requires the adjudicator to decide, under rule 3 of the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003, how the referred matter should be dealt with justly.
3. The discretion depends on all the circumstances, including the stage reached and the reasons for withdrawal. At an early stage, termination with appropriate directions and costs may be just. Where the reference is substantially advanced, the adjudicator may impose terms, including a direction under rule 41(2) restricting future applications, or proceed to determine the merits.
4. A consensual resolution may be reflected in an order directing cancellation of the notice, even without a decision on the merits. Separately, the beneficiary’s right to apply for voluntary removal under section 35(3) is not excluded by a pending reference. Removal does not, however, automatically terminate the adjudication proceedings.
5. The appeal challenged jurisdiction only, not the manner in which the adjudicator exercised his discretion. The adjudicator had jurisdiction to proceed, and the registrar’s appeal was dismissed.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 801, the Chief Land Registrar’s appeal was dismissed.
• High Court, Chancery Division: Floyd J dismissed the appeal from the adjudicator’s decision in [2010] EWHC 1627 (Ch).
• Adjudicator to HM Land Registry: On 15 June 2009, the adjudicator refused to terminate the reference, determined the merits and directed cancellation of the unilateral notice.