Antoine v Barclays Bank UK Plc & Anor

For rectification under Schedule 4 to the Land Registration Act 2002, a mistake concerns the state of the register when the relevant entry was made. An entry which was correct at that time cannot retrospectively become a mistake because the underlying disposition is later avoided.

A facially valid court vesting order must be obeyed until set aside. Registration made to give effect to such an order is not a mistake, even where the order was obtained using forged documents and is later set aside. A charge granted by the registered proprietor is likewise not a mistaken entry where the proprietor’s registration was not mistaken.

A default vesting order made in 2007 transferred registered freehold and leasehold property to Mr Taylor. HM Land Registry registered him as proprietor, after which he granted Barclays a registered legal charge over the property. The order relied on documents later found to have been forged.

In 2008 the court set aside the vesting order, without prejudice to the bank’s charge. The administrator of the former proprietor’s estate sought rectification of the register to remove that charge. The High Court held that neither Mr Taylor’s registration nor the charge was a mistake: [2018] EWHC 395 (Ch). The appeal concerned whether a later-set-aside vesting order rendered the earlier registrations mistaken for Schedule 4 purposes.

1. Appeal dismissed. The court held that there was no mistake in the register capable of rectification under Schedule 4 to the Land Registration Act 2002.

2. A mistake must be assessed when the relevant entry or deletion is made. Schedule 4 concerns the accuracy of the register, rather than a defect in the underlying transaction. A void disposition creates no disposition capable of registration, so an entry based upon it is mistaken. By contrast, an unrescinded voidable disposition is effective when registered. Its later rescission does not retrospectively turn a correct entry into a mistake: [2018] 1 WLR 639.

3. The registrar’s assumed knowledge of the true facts is an objective means of testing whether there was a disposition to register. It neither imposes an investigative duty on the registrar nor makes the registrar’s actual knowledge decisive.

4. Under section 9 of the Law of Property Act 1925 and section 27 of the Land Registration Act 2002, the 2007 vesting order itself effected the disposition. It was facially valid and effective when registration occurred. Court orders are not to be analysed as void or voidable transactions: they are regular or irregular, and even an irregular order which may be set aside as of right must be obeyed unless and until it is set aside. The forged underlying documents therefore did not make the registrar’s compliance with the order a mistake.

5. As Mr Taylor’s registration was not mistaken, the registration of the legal charge he granted was not mistaken either. The court expressed no view on the bank’s alternative argument concerning the charge had the original registration been mistaken.

• Court of Appeal (Civil Division) Dismissed the administrator’s appeal and upheld the refusal to rectify the register: [2018] EWCA Civ 2846.
• High Court of Justice, Chancery Division Held that registrations made pursuant to the 2007 vesting order, including the bank’s legal charge, were not mistakes for Schedule 4 purposes: [2018] EWHC 395 (Ch).