The Land Registry Adjudicator – Law of Unintended Consequences
Jeffrey Littman looks at the role of the land registry adjudicator in this article.
When the Registrar receives an application to alter an entry in HM Land Registry he can allow it or disallow it. Until 2003, if the applicant didn’t like his decision it was referred to the Land Registry Solicitor who decided who was right. His caseload ran at about 80 a year.
The Solicitor restricted himself to deciding such points as whether there was an arguable case to apply for entry or amendment of the estate, charge, caution or whatever it might be and whether proper procedure had been followed. Any dispute involving a matter of substantive entitlement he would require to be tried by the competent court.
s73 Land Registration Act 2002 replaced him by an Adjudicator. The Law Commission report, Land Registration for the 21st century: A Conveyancing Revolution, published with a draft Bill, stated:
“The great merits of the present system of determination by the Solicitor are that they are cheap, swift and a great deal more informal than hearings before a court. In practice, remarkably few decisions have been appealed and virtually none of those successfully. It is intended that the practice of the Adjudicator should offer a similar service and thereby obviate the need for, and expense of, court proceedings.”
The Adjudicator now has a score or so Deputy Adjudicators. The first case came before him in March 2004. By the end of 2010 his office had dealt with its 10,000th case. A rather different annual average from the Solicitor’s.
Under the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 made under a power in the Act, the Adjudicators give directions about pleadings, disclosure, expert witnesses, witness statements, site visits and trials, hear evidence on oath and make costs orders on the standard or indemnity basis. All they lack are wigs and gowns.
This was not foreseen by Parliament, which passed the relevant parts of the Law Commission’s draft Bill without amendment. Unlike all the other reforms in the 2002 Act, there had been no consultation about the creation and powers of the Adjudicator. It came about as one those pieces of knee-jerk legislation we are always warned to avoid.
As the Law Commissioners were getting their Bill ready for Parliament after the June 2001 election, having already agreed the terms of the report, a query came from elsewhere: what effect would the Human Rights Act have on the Land Registry’s possible liability to an aggrieved applicant after his dispute with the Registrar had been referred to the Solicitor to HM Land Registry? Art 6, European Convention on Human Rights, enshrines the right to an independent tribunal. Visions of paying vast sums in compensation after embarrassing proceedings in Strasbourg rose up before the eyes of those whose responsibility it was to meet the Land Registry’s budget. It was a serious point.
The Commissioners were up to the task. Before the Queen’s Speech, and without thinking through entirely where their wording might lead, they had drafted what became s73 and Part 11 (ss107-114) of the Act and explained them in eight pages in their report.
s73(7) provides that if an objection, other than a groundless one, cannot be disposed of by agreement, the Registrar must refer the matter to the Adjudicator. Part 11 creates the office of Adjudicator, codifies what he does, provides for rules and appeals, and states (s112), “A requirement of the adjudicator shall be enforceable as an order of the court.”
The power for a reference of an objection to the court by the Registry has gone. Only the Adjudicator may direct this, under s110. The Commission thought he would do so in cases involving “important or difficult points of law, … substantial or complex disputes of fact…matrimonial proceedings” and the like.
However, unlike the Solicitor, the Adjudicator does not feel a strong obligation to refrain from determining such matters.
When in 2007 a Mrs Jayasinghe applied for entry of a restriction against a title on the ground that she was the sole beneficiary under a resulting trust, she was opposed by someone who claimed she had no interest at all and was perpetrating a complete fiction. The matter came before a deputy adjudicator. He received testimony under cross-examination at a two-day trial. He found that, while Mrs Jayasinghe’s case had been arguable, she was unreliable and her story was indeed a fiction. He had tried a case of fraud exactly like a Chancery Division judge.
Mrs Jayansinghe appealed. She argued that the Adjudicator could only determine whether she had an arguable claim and, if he found she had, must then direct under s110 that her claim be tested by a competent court. Briggs J (who had to distinguish an earlier decision of his own in doing so) upheld the jurisdiction of the adjudicator (Jayasinghe v Linayage [2010] EWHC 265 (Ch); [2010] 1 WLR 2106).
Now, no matter what matters of the law of trust, professional negligence, administration of estates, prescriptive rights, or even matrimonial disputes, lie behind somebody’s application to alter the register, those can all be decided at the level of a deputy adjudicator to HM Land Registry.
This can lead to trials like the one the author had in 2010, turning among other things on whether the lordship of a manor had become extinguished in 1605 and who was in possession of its wastes. Judgment was delivered more than three years after the Registrar referred the dispute to the Adjudicator. The trial took two-and-a-half weeks, led to a four-day appeal and gave rise to more than five days of detailed costs assessment which presently stands adjourned. One party’s bill, thanks to a CFA, exceeded £750,000. The others’ came to £120,000 even though they had acted in person during the third year of the litigation.
That is what has become of the cheap, swift and informal process removed by the Land Registration Act 2002.
NOTE: the above account of the last-minute drafting of the legislation comes from a former Law Commissioner, who had probably better remain nameless.
