Walker & Anor v Burton & Anor

A mistaken registration of land which follows a mistaken registration of a manorial lordship does not thereby escape the statutory protection afforded to a registered proprietor in possession. Under Land Registration Act 2002, Schedule 4, paragraph 6(2), rectification requires separate consideration of the land registration and of the specified exceptions.

The applicant bears the burden of proving that the proprietor’s lack of proper care caused or substantially contributed to the mistake. Whether it would be unjust not to rectify is a fact-sensitive assessment for the fact-finding tribunal. An appellate court will intervene only for legal error, error of principle or an assessment no reasonable tribunal could have made.

The appellants applied to alter the register by closing the respondents’ registrations of the Lordship of the Manor of Ireby and Ireby Fell. The Deputy Adjudicator held that both registrations were mistaken because the respondents had no title to the lordship. He closed the lordship title, but refused to close the Fell title because the respondents were proprietors in possession of land and neither exception in paragraph 6(2) of Schedule 4 to the Land Registration Act 2002 was established.

A Deputy Judge of the Chancery Division dismissed the appellants’ first appeal. The appellants’ second appeal challenged the conclusions on lack of proper care and injustice, and argued that the Crown’s potential title and the consequential connection between the two mistakes required rectification of the Fell title.

1. Appeal dismissed unanimously. The Deputy Adjudicator and the Deputy Judge made no error of law in refusing to close the registered title to Ireby Fell.

2. The registration of the lordship and that of the Fell were both mistakes. However, the fact that the latter was consequential on the former did not require the same outcome. A lordship is an incorporeal hereditament and is not land for the relevant definition in the Land Registration Act 2002. Its registration could therefore be corrected without engaging the possession protection. The Fell was land and the respondents were in physical possession of it. Paragraph 6(2) of Schedule 4 remained fully applicable to its rectification.

3. The appellants bore the burden of proving that lack of proper care caused or substantially contributed to the mistaken Fell registration. That was a factual issue. The Deputy Adjudicator was entitled to find that the respondents had acted reasonably in instructing solicitors, and that Mr Burton’s good-faith belief that the Fell accompanied the registered lordship was reasonable on the material then known, including the 1836 stinting agreement. The expected professional standard was that of an ordinarily competent solicitor undertaking this type of work.

4. The lack-of-care case concerning the Fell was also fatally defective in procedure. It was not pleaded or put to Mr Burton in cross-examination, and was raised only after the evidence had closed. The respondents consequently had no fair opportunity to address it or to call evidence from their solicitor.

5. Whether non-rectification would be unjust under paragraph 6(2)(b) was an evaluative factual assessment. The Crown’s potential title was relevant but carried no significant weight: it was not a party, had asserted no title, and had reserved its position. The tribunal could properly weigh the appellants’ lack of title, their delay, the respondents’ possession and expenditure, and their grazing and sporting commitments. Those matters entitled it to conclude that it was not unjust to leave the Fell title registered to the respondents.

• Court of Appeal (Civil Division): The second appeal was dismissed: [2013] EWCA Civ 1228.
• High Court of Justice, Chancery Division: A Deputy Judge dismissed the appellants’ first appeal on 17 April 2012, holding that the Deputy Adjudicator had made no error of law.
• Deputy Adjudicator to HM Land Registry: On 10 December 2010, the Adjudicator ordered closure of the mistaken lordship registration but refused to rectify the respondents’ registration of Ireby Fell.