Baxter v Mannion

This is a renewed application for permission to appeal. The application is made by Ms Helen Galley on behalf of Mr Steven Baxter, and the decision which he wishes to appeal is that of Henderson J. On 18 March 2010 Henderson J dismissed Mr Baxter’s appeal from the decision of a Deputy Adjudicator to Her Majesty’s Land Registry, Ms Ann McAllister, dated 5 February 2010. The order of the Deputy Adjudicator was that the Chief Land Registrar should give effect to the application by the proposed respondent to the appeal, Mr Mannion, to alter the register of title number CB304178; that is the title number to a field in Chatteris in Cambridgeshire, near Ely.

This is a second appeal, the first appeal having been to Henderson J. This court is required by Rule 52.13 of the Civil Procedure Rules not to grant permission unless it considers that (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it. The application to this court was made on the basis that there is here an important point of principle or practice in relation to the law of adverse possession and the Land Registration Act 2002.

The application was first considered on paper. In refusing the application on 13 May 2010 Sir Richard Buxton said that the judge’s conclusions, as to the factual findings complained of in grounds 4 and 5, raised no issue suitable for a second appeal and were in the event plainly open to him. He was prepared to accept that the second and third grounds potentially raised an important point of principle on the construction of paragraph 5(a) of schedule 6 to the Act, but he saw no prospect of an appeal on that point succeeding. He said that registration of land, in respect of which the applicant had not been in adverse possession, is plainly a mistake in registration. Quite apart from the simple terms of the legislation, there are policy grounds cogently set out by the judge for extending the jurisdiction to that case. He added that the applicant’s attempt to explain how the term is to be interpreted so as to exclude that contingency was unpersuasive; in particular, he said that if a procedural error came to light, the remedy would seem to be for the Registrar to review the merits in the light of any further submissions to him, and not automatically respond by altering the register. The latter remedy, he said, would rationally follow only if the review showed the registration in fact had been a mistake.

I have had the benefit, which Sir Richard Buxton did not have, of not only having the initial skeleton argument but of a helpful statement by Ms Galley for the purposes of the Practice Direction 52.4(14)(a)(2). She has also fortified the submissions made in that statement by handing up to the court in the course of her oral submissions extracts from texts relating to the points which she wishes to argue on an appeal if permission is granted. The extracts are from the current edition, 2008, of the Law of Real Property, MeGarry & Wade, edited by Charles Harpum, in which she referred me in particular to a passage at paragraph 35.070, and another at 35.079. I was also referred to passages in Rouff and Roper, Chapter 46, “Alteration of the Register”, in particular paragraphs 46.005 and 46.012 and 46.015.

I have been persuaded by Ms Galley that, on the basis of this initial material and further material, this is a case in which the court exceptionally would allow a second appeal. It seems to me that there are two important points of principle or practice relating to the new legislation in the Land Registration Act, which I may summarise as the mistake point and the burden of proof point. It seems to me that, although this dispute is already costing a lot of money and is about the ownership of what seems to be a modestly-sized field, these are questions of principle and practice which Mr Baxter is entitled to have argued before the full court.

I would, therefore, grant permission to appeal. I am not limiting it in any way, though I would add that it does seem to me that the major point in the case is what is described in the submissions as the mistake point. In granting permission to appeal, I will direct that there should be included in the constitution of the court which hears the appeal at least two Chancery Lords Justices. This is a matter that is especially within their areas of expertise. I will say an estimate of one day.