Ward of the land

As the go-to person in disputed Land Registry applications, the independence of the adjudicator is of key importance. By Michelle Stevens-Hoare

The adjudicator to HM Land Registry is an independent judge appointed for the purpose of overseeing disputed applications that arise at the Land Registry.

The adjudicator, his deputies and staff constitute an independent tribunal created by the Land Registration Act 2002 and supersedes the solicitor to HM Land Registry, a registry appointee to whom the chief land registrar had power to refer disputed applications.

The Adjudicator’s Office is managed by the Tribunals Service, with the Registry reimbursing the service for the cost of running the office. Notwithstanding the funding arrangements, the adjudicator is completely independent of the registry.

What does the adjudicator do?s
The adjudicator’s jurisdiction covers three distinct areas of work: matters referred by the registry; applications for the rectification or setting aside of certain documents; and appeals from decisions of the registry about the grant, terms or termination of network access agreements giving solicitors etc access to the Registry network for the purposes of e-conveyancing.

Any application made to the registry to make, remove or alter an entry on the Register could be referred to the Adjudicator. When an objection is made, the Registrar may dispose of it personally if they conclude it is groundless and will

encourage the parties to reach agreement. However, if the objection is not resolved the registrar must refer it to the adjudicator. Essentially every application to the registry that is met with an objection that is neither groundless or disposed of by agreement is referred automatically. That element of the adjudicator’s jurisdiction generates the vast majority of the work, amounting to more than 1,600 cases a year.

Cases referred to the adjudicator by the registry include every conceivable issue relating to registration of interests, notices and restrictions, possessory title, validity or priority of charges, easements, restrictive covenants, options, beneficial interests, forged transfers and boundary disputes.

Parties may elect to use the Adjudicator’s Office where they are seeking to rectify or set aside a document that effects, or is a contract for, a registrable disposition or a disposition that creates an interest that could be the subject matter of a notice on the Register.

Because e-conveyancing has been delayed, the jurisdiction relating to network agreements is not yet operative, but clearly has the potential to be a significant element of the adjudicator’s work following implementation in April 2008.

Who is the adjudicator?
Edward Cousins was appointed adjudicator in 2003. In order to cover the huge amount of work referred to the office he has appointed 12 deputies. Two of the deputies, Ann McAllister and Owen Rhys, are full time. All are property law specialists who, with the exception of one academic, have practised as solicitors or barristers. They generally hear cases close to the land concerned, sitting in local county courts and tribunal buildings, thereby being able to incorporate site visits.

What powers does the adjudicator have?
The adjudicator’s powers are derived from the Land Registration Act 2002 and the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003.

The adjudicator determines applications referred by the Registry or made by a party to a document and makes substantive orders with written reasons. Where an application referred by the Registry is determined, the adjudicator may include in his order a requirement that the registrar give effect to or cancel the original application, or include a specific entry on the Register. The adjudicator may also order that any future application of a specific kind by a named party be rejected by the Registry outright or unless specified conditions are satisfied.

The adjudicator can order a party to a matter referred by the Registry to commence proceedings to secure a court’s decision on the issues raised within a specified period of time.

Further, the adjudicator can order costs during, or at the conclusion of, a case. However, the adjudicator cannot currently order costs other then disbursements in favour of a litigant in person. Supreme Court Costs Office judges have been appointed deputies by the adjudicator so that substantial or complex costs issues may be referred to them for determination. In addition, the adjudicator can make a wasted costs order requiring a legal representative to pay the whole or part of their client’s costs or their client’s costs liability to another party.

The adjudicator also has procedural powers. In particular he can issue a requirement notice requiring the attendance of any person to give evidence or to produce any document or other material. The adjudicator is also empowered to make decisions without a hearing if he concludes that there is no important public interest concern and no party, after notice of the intention to deal with it on paper, objects.

The adjudicator can also make directions. There are rules relating to preliminary issues, statements of case, further information, disclosure, exchange of witness statements and expert evidence. He has a very broad powers to make directions that enable the parties to prepare for a hearing or to assist him in the conduct or determination of the matter.

How does the adjudicator deal with cases?
Once jurisdiction is accepted, the parties are designated the titles of ‘applicant’ and ‘respondent’, usually by reference to which bears the burden of proof. The applicant is ordered to file a statement of case in the prescribed form. It should include the documents relied upon and identify the witnesses the applicant intends to call. The respondent is then required to provide a statement of case. Thereafter directions are given.

In the majority of cases everything prior to the site visit and hearing is dealt with on paper.

What is the status of the decisions?
Any requirement of the adjudicator is enforceable as an order of the court.

In the majority of the adjudicator’s work, the decision is simply that an application to the Registry should be given effect in whole or part, or cancelled. However, in reaching that decision the adjudicator will often have made findings of fact with much wider implications. For instance, in deciding whether a former cohabitee should have a restriction to protect an alleged beneficial interest in their ex-partner’s property, the adjudicator will have had to decide whether they have any beneficial interest, how it arose and, probably, have made findings that go to the size of the interest. Such findings will give rise to an issue estoppel between the participants in the proceedings before the adjudicator.

Appeals from the adjudicator’s decisions are taken to the Chancery Division to be determined by a single judge. So far there has only been one successful appeal.

The pros and cons
It is a truly specialist jurisdiction comprising adjudicators who know the law and the subject matter. There are no court fees. The lack of interlocutory hearings can keep costs down. Litigants in person are currently limited to recovery of their disbursements.

Currently there is no power to strike out or give summary judgment, but watch this space. There is no jurisdiction to grant remedies beyond the allowing or cancelling of the application made, so those wanting other remedies, such as injunctions or orders for sale, will need to go to court.

Michelle Stevens-Hoare is a deputy adjudicator to HM Land Registry and a barrister at Hardwicke Building