Obadare & Ors v Barton Bridging Capital Ltd

A claim that has been struck out is at an end and is no longer pending, even while the claimant retains a right to apply for reinstatement. A later successful reinstatement may retrospectively restore the claim, but until that order is made the claim has ceased to be pending.

Where a unilateral notice is entered to protect a land action that has already ended, its registration is a mistake for the purposes of Schedule 4 to the Land Registration Act 2002. The court may order alteration where retaining the notice would be unjust.

Barton Bridging Capital Ltd, the mortgagee of registered land, obtained summary judgment in the Chancery Division before Newey J. The judge ordered rectification of the title register under Schedule 4 to the Land Registration Act 2002 by removing a unilateral notice entered in favour of the applicants.

The notice stated that it protected a pending land action. That action had been struck out by District Judge Manners on 4 March 2013, with the strike-out affirmed on 20 March. The applicants argued that the action remained pending because they could still apply for reinstatement. The Court of Appeal considered whether the action was pending when the notice was applied for and entered.

1. Application refused. Rimer LJ held that the proposed appeal had no real prospect of success. Grounds 2 to 7 disclosed no arguable basis, leaving only whether the 2013 land action was still pending when the unilateral notice was applied for and registered.
2. The order of 4 March struck out the whole claim, and the order of 20 March affirmed that result. The action was therefore at an end from 4 March. The applicants’ surviving right under CPR Part 3.4(6) to apply for reinstatement did not keep the action pending. The position was analogous to a claim struck out for failure to comply with an unless order.
3. If reinstatement were later granted, the action would no doubt be treated as having never been struck out. Until then, however, the strike-out remained effective. The unilateral notice therefore purported to protect an action that was no longer pending, and its registration was a mistake.
4. Because the registration resulted from a mistake, the court had jurisdiction under paragraph 2 of Schedule 4 to the Land Registration Act 2002. The applicants had not caused or substantially contributed to the mistake by fraud or lack of proper care, so paragraph 3(2)(a) did not apply. Nevertheless, under paragraph 3(2)(b), retaining the notice would be unjust.
5. Paragraph 3(3) required alteration unless exceptional circumstances justified refusing it. No such circumstances were shown. Newey J’s order removing the unilateral notice was upheld, and permission to appeal was refused.

• Court of Appeal (Civil Division): Permission to appeal from Newey J’s order was refused: [2013] EWCA Civ 1096.
• High Court of Justice, Chancery Division: Newey J ordered rectification of the register by removing the unilateral notice under Schedule 4 to the Land Registration Act 2002.
• County Court: The applicants’ 2013 land claim was struck out on 4 March 2013 and the strike-out was affirmed on 20 March 2013.