Antoine v Barclays Bank Plc & Ors

For the purposes of rectification under Schedule 4 to the Land Registration Act 2002, the registration of title pursuant to a court order that was valid on its face at the time of registration is not retrospectively a mistake merely because the order was later set aside for fraud. The registrar must give effect to a qualifying court order and cannot investigate its underlying validity. A registered proprietor may exercise the statutory owner’s powers, including charging the estate, and the resulting charge is not mistaken where the proprietor’s registration was valid when made. The court must rectify an established mistake unless exceptional circumstances justify refusal, but that issue does not arise where no mistake is shown.

The proceedings comprised two actions heard together. The first concerned claims arising from an alleged 1987 loan secured on property and documents said to transfer or charge interests in it. The second sought declarations that the documents were forgeries and alteration of the register to remove a legal charge granted by the person who had obtained registration pursuant to a court order.

The court found the documents forged. It then considered whether the registration effected pursuant to the order, the later registration of the charge, or the absence of an observation recording the order’s procedural history constituted a mistake under Schedule 4 to the Land Registration Act 2002.

1. Forgery. The court assessed the lay evidence before the handwriting evidence and applied the balance of probabilities approach in Re H [1996] AC 536. The contested documents were forgeries. The evidence of Mr Borland was unreliable, while the expert evidence provided strong support for that conclusion.
2. Effect of the court order. A court order of competent jurisdiction must be obeyed unless and until set aside. The July 2007 order was valid and effective when made, although it was later set aside. The reasoning of Lord Denning MR in Firman v Ellis [1978] 1 QB 886 did not represent the majority reasoning in that case and could not support treating the order as a nullity from the beginning.
3. Meaning of mistake. Following NRAM Ltd v Evans [2018] 1 WLR 639, the question must be assessed at the time of registration. The registrar had to give effect to the order and could not look behind it. Registration pursuant to the order was therefore not a mistake under Schedule 4 paragraph 2(1)(a), either when made or retrospectively.
4. The absence of an observation recording that the order had been made in the defendant’s absence was also not a mistake. There was no statutory or procedural duty to make such an entry, and imposing one would require the registrar to investigate the order and undermine the conclusiveness of registration.
5. The legal charge. Mr Taylor was the registered proprietor and could exercise the owner’s powers under sections 23, 24 and 26 of the Land Registration Act 2002. The charge was valid, its registration was not a mistake, and it took priority over any unprotected right or equity under section 29.
6. The claim for alteration of the register was dismissed. The 2006 claim was dismissed and the unilateral notice was ordered to be deleted. The court also refused the late amendments. The court made no order on Mr Antoine’s abandoned compensation claim.

First-instance decision. No appellate history was stated in the judgment.