Naeem Nazir & Anor v Dilshad Begum

Permission to appeal does not itself authorise a new point to be argued at the hearing. The appellate court may admit a new point where it can determine it without new evidence or a differently conducted trial, and where deciding the appeal without addressing the point would be more unsatisfactory.

For Land Registration Act 2002 Schedule 6 paragraph 12, an estate in the course of administration following death or intestacy is not subject to a trust merely because Administration of Estates Act 1925 section 33 describes it as being held in trust. Personal representatives hold the estate for administration without differentiation between legal and beneficial ownership. The trust exception therefore does not prevent adverse possession during the administration period.

The appellants appealed against HHJ Walsh’s decision dismissing their possession claim and directing registration of the respondent as proprietor of disputed registered land. The respondent relied on adverse possession under section 98 of the Land Registration Act 2002.

The appellants argued for the first time on appeal that their father’s death intestate and the subsequent grant of letters of administration created a statutory trust under section 33 of the Administration of Estates Act 1925. They contended that this trust interrupted the ten-year period required by Schedule 6. The central issues were whether the new point should be admitted and whether administration of the estate fell within Schedule 6 paragraph 12.

1. New point. The court admitted the appellants’ new statutory point. Permission to appeal showed only that the point had reasonable prospects; it did not bind the respondent to accept its introduction. However, no new evidence was advanced, and the respondent had not shown that the trial would have been conducted differently. It was more unsatisfactory to decide the appeal while ignoring a discrete point of law.
2. Respondent’s Notice. On the assumption that a Respondent’s Notice was required and had been served late, relief from sanctions was granted. Applying the third limb of Denton v TH White Ltd, the appellants had sufficient time to respond, had not sought an adjournment, and had been allowed supplemental written submissions. The prejudice caused by exclusion would have been greater than any prejudice caused by lateness.
3. Meaning of trust. Schedule 6 paragraph 12 refers to a trust in the conventional sense. Personal representatives administering an intestate estate hold the deceased’s property in full ownership, without differentiation between legal and beneficial interests, for the purposes of administration. Section 33’s use of the word trust imposes fiduciary obligations but does not convert the administration into a conventional trust.
4. The court preferred the reasoning in Best v Curtis and held that death or administration of an estate does not fall within Schedule 6 paragraph 12. The absence of an express incorporation of the extended definition in section 68(17) of the Trustee Act 1968, unlike the position under the Limitation Act 1980, supported that conclusion. The separate exception concerning beneficiaries’ interests in possession also supported the requirement for identifiable beneficiaries.
5. In any event, the appellants had not shown that the exception applied against them. Their assertions concerning additional beneficiaries and successive interests were unsupported by evidence and could not be introduced without causing unfair prejudice. The appeal was dismissed.

• High Court (King’s Bench Division): HHJ Walsh dismissed the possession claim on 16 December 2022 and directed registration of the respondent as proprietor under section 98(5) of the Land Registration Act 2002. Mr Justice Sweeting granted permission to appeal on 24 May 2023. The appeal was dismissed.