The Chief Land Registrar v Silkstone & Ors

This appeal, brought by The Chief Land Registrar (represented by Timothy Morshead QC), is against an order dated 2 July 2010 made by Floyd J in the Chancery Division dismissing an appeal against a decision dated 15 June 2009 of Michael Mark, sitting as a Deputy Adjudicator (‘the adjudicator’) to HM Land Registry. The adjudicator’s decision (REF/2008/0823) was on a matter referred to him by the Chief Land Registrar under section 73(7) of the Land Registration Act 2002. That matter was the resolution of a difference as to the justification of an objection raised by Leonard and Gary Silkstone (‘the Silkstones’) to an application made by a registered proprietor, Simon Tatnall, for the cancellation of a unilateral notice affecting his title that they had registered.

On the first day of the substantive hearing of the reference, the Silkstones purported to ‘withdraw their case’ and claimed that (apart from costs) there was nothing further upon which the adjudicator should adjudicate. They had, however, also indicated that they reserved the right to institute court proceedings in respect of the claim upon which they had founded their registration of the unilateral notice. The adjudicator disagreed that the purported withdrawal rendered him as impotent as the Silkstones asserted. Whilst he considered that he had a discretion to terminate the reference without making a decision on the merits, he took the view that he ought not so to exercise his discretion but should rule upon the merits of the reference. He proceeded to do so, albeit in the absence of the Silkstones and their witnesses, who took no further part. By his decision he directed the Chief Land Registrar to give effect to Mr Tatnall’s application for the cancellation of the unilateral notice that the Silkstones had registered.

The adjudicator recognised that, in taking that course, he was differing from the approach of another Deputy Adjudicator, Simon Brilliant, as reflected in his decision in Blackraven Developments Ltd v. Sapphire (Harlow) Nominee Ltd and Another Ref/2007/0274 (16 November 2007). Mr Brilliant there decided that once an application or objection is withdrawn, the adjudicator’s jurisdiction on a reference (save in respect of costs) comes to an end as there is no longer a dispute upon which to adjudicate (paragraph [47]). The adjudicator also recognised that the Chief Land Registrar disagreed with his approach as well. He therefore gave permission to the Silkstones to appeal to the High Court, his judgment of 31 July 2009 on their permission application identifying the issue as being:

Mr Tatnall took no part in the appeal before Floyd J, who had no argument supporting the adjudicator’s approach. The only arguments he did have were from counsel for the Silkstones and from Mr Morshead for the Chief Land Registrar, who were united in challenging it. The Chief Land Registrar had been joined as a respondent to the appeal as it raised an issue of importance concerning the practice of the Adjudicator to HM Land Registry.

Floyd J dismissed the appeal ([2010] EWHC 1627 (Ch)), adopting a perhaps more extreme position than had the adjudicator. In his view, the only way in which the Silkstones could stop the progress of the reference towards a decision on the merits was either by settling with Mr Tatnall or else by conceding both the relief he was seeking and his entitlement to it. By the latter alternative, the judge meant that the Silkstones had to concede both that their notice should be cancelled and that their basis for registering it was unfounded. As the Silkstones had indicated no more than that they wished to withdraw from the reference and suffer the cancellation of the notice (but without prejudice to their right to revive the same substantive claim in other proceedings), the judge held that there was no basis upon which it could be said that the adjudicator’s jurisdiction to determine the reference was removed and no question of his having a discretion to terminate it. If, contrary to Floyd J’s view, the adjudicator did have a discretion to halt the reference as requested, his refusal to do so could not be faulted: he was entitled to take account of the Silkstones’ wish to commence fresh proceedings on the same issue.

Patten LJ gave permission for a second appeal to this court on the basis that it would raise an important question of principle as to the adjudicator’s powers and jurisdiction. The Silkstones were appellants but, following their reaching of agreement with Mr Tatnall over their differences, they had no interest in pursuing their appeal, nor did Mr Tatnall have an interest in resisting it. That left the Chief Land Registrar as the sole appellant. He wished to submit to the court that the adjudicator and Floyd J were both wrong and that the withdrawal by the Silkstones from the reference brought the adjudicator’s jurisdiction to an end save for a continuing jurisdiction as to costs. During the run up to the hearing, the court decided that it might be disadvantaged by having argument only from the Chief Land Registrar on a point of general importance. It therefore invited the Attorney General to appoint an advocate to the court to present contrary arguments and Amanda Tipples QC has performed that role. I am grateful to both counsel for their helpful submissions.

The Silkstones are the registered proprietors of 2 Croft Cottages, Belchamp Walter, Sudbury, Suffolk (‘No 2’). Mr Tatnall is the registered proprietor of the property next door, No 3 (Title No EX665968). The Silkstones claimed to have acquired by prescription a pedestrian right of way appurtenant to No 2, one which ran between No 2 and the highway through a gate in the fence between Nos 2 and 3 and thence across No 3’s back garden. They applied on 7 February 2008 to register a unilateral notice against the Charges Register of No 3, supporting their application with a statutory declaration of 10 January 2008. The notice was registered under entry 2 in the Charges Register, the registration being dated 7 February 2008 and described as ‘in respect of a claimed right of way contained in [the statutory declaration].’ Entry 4 stated that the ‘beneficiary’ of the notice was the Silkstones.

On 21 February 2008 Mr Tatnall applied to the Land Registry for the cancellation of the notice. The Silkstones were notified of his application and raised an objection to it. The Chief Land Registrar (hereafter ‘the registrar’) was not satisfied that the objection was groundless, nor could the parties reach agreement as to its disposal. That meant that the registrar had to refer ‘the matter’ to the adjudicator, as he did on 18 June 2008.

The reference before the adjudicator proceeded in the usual way. Mr Tatnall was designated the applicant, the Silkstones the respondents. The Silkstones were assisted in the reference by their father, a legal executive. There were exchanges of statements of case and witness statements, the latter going to the factual issue of whether the Silkstones had acquired by prescription their claimed right of way and raising in particular a dispute as to the extent of the use of the gate between Nos 2 and 3. In early 2009, the Silkstones made an application for disclosure directed at assisting the advancing of an alternative claim based on section 62 of the Law of Property Act 1925 but it was refused on the basis that such a claim was not part of their pleaded case. By May 2009 the Silkstones had produced a trial bundle, a list of issues, a chronology and a skeleton argument. There was to be a site view on 1 June 2009 and the substantive hearing of the reference was to take place on 2 and 3 June 2009.

On 28 May 2009 the Silkstones informed the adjudicator that they were anxious to trace two particular witnesses whom, for an unexplained reason, they had not sought to trace before. The evidence of one of them was said to be crucial to the section 62 case (a case that I understand was still unpleaded). The Silkstones thereby sought permission to withdraw from the proceedings due to take place on 1, 2 and 3 June 2009:

That was therefore no more than a request by the Silkstones to withdraw from the reference. The adjudicator refused it by a fax of the same day on the basis that the dispute had been proceeding for almost a year and it could be unjust to Mr Tatnall to permit a withdrawal on the requested basis. He informed the Silkstones that they could renew their application at the hearing, when they could also apply for an adjournment in order to obtain the further evidence to which they had referred.

The site visit took place on 1 June in the presence of one of the Silkstones and their father. No further mention was made of a withdrawal. The hearing was to take place over the two following days. On 1 June, the adjudicator received a fax from the Silkstones to the effect that, without the evidence of a particular witness (who was both unwell and unwilling), they had probably no better than a 50% chance of success and so they wished ‘to withdraw their case due to lack of evidence ….’, a wish they had notified to Mr Tatnall. The fax continued:

The adjudicator explained all this in his reserved decision of 15 June 2009, where he also summarised the nature of a reference to the adjudicator under the Land Registration Act 2002, his jurisdiction and the power of a party to a reference to withdraw. I have explained how he exercised his discretion against permitting the Silkstones to withdraw and so escape a hearing and decision on the merits. On the merits, he found that no case for the claimed easement was established under section 62 or the rule in Wheeldon v. Burrows (1879) LR 12 Ch. D. 31; nor was there any admissible evidence to support the making of a claim to an easement by prescription. I shall return to the adjudicator’s reasons for proceeding to a hearing on the merits but must first summarise the relevant primary and secondary legislation, including that relating to his jurisdiction.

Part 4 of the Land Registration Act 2002 (‘the Act’) is headed ‘Notices and Restrictions’. Section 32(1) provides that a ‘notice’ is an entry in the register in respect of the burden of an interest affecting a registered estate or charge. Section 32(3) explains that the fact that an interest is the subject of a notice does not necessarily mean that the interest is valid, but ‘does mean that the priority of the interest, if valid, is protected for the purposes of section 29 and 30.’ Section 34(1) provides that a person who claims to be entitled to the benefit of an interest affecting a registered estate or charge may, if the interest is not excluded by section 33, apply to the registrar for the entry in the register of a notice in respect of the interest. By section 34(2) such an application can be for the entry of ‘an agreed notice’ (not in point here) or ‘a unilateral notice’ (which is). The Silkstones’ claimed right of way was an interest imposing a burden affecting No 3. It was not an excluded interest and they applied for the entry of a unilateral notice in respect of it on No 3’s title.

Section 35 is headed ‘Unilateral notices’. Section 35(2) requires such a notice to identify its ‘beneficiary’ and the Silkstones’ notice named themselves as such. Having entered their notice on Mr Tatnall’s title, the registrar was obliged by section 35(1) to give notice of it to Mr Tatnall, as he did. Section 35(3) provides:

I turn to the Land Registration Rules 2003 (SI 2003/1417) (‘the LRR’). Rule 85, headed ‘Removal of a unilateral notice’, deals with the mechanics for exercising the right of removal conferred by section 35(3). It provides:

Section 35 of the Act, which is concerned therefore both with the entry of a unilateral notice and its subsequent ‘removal’ by a beneficiary or person claiming through him, is followed by section 36, headed ‘Cancellation of unilateral notices’ (my emphases). In the context, ‘removal’ is therefore a voluntary act by the beneficiary whereas ‘cancellation’ is achieved by a hostile application that may be made by the registered proprietor affected by the notice. By section 36(1), he may apply to the registrar for such cancellation. Section 36 then provides:

I return to the LRR, of which rule 86 deals with the mechanics for applying for a cancellation under section 36. Rule 86(1) requires the application to be made in Form UN4 and rule 86(3) prescribes the time within which the beneficiary of the notice may exercise his right to object to any cancellation.

Mr Tatnall applied under section 36 for the cancellation of the Silkstones’ notice and the Silkstones exercised their right to object in time. That state of neighbourly opposition led to section 73, headed ‘Objections’, in Part 6 of the Act, headed ‘Registration: General’. This section introduces the adjudicator to the scene and I shall set it out in full:

Once, therefore, the Silkstones had raised their objection to Mr Tatnall’s application, the registrar had first to consider whether or not it was ‘groundless’. If satisfied that it was not, as he was, he had to give notice of it to Mr Tatnall, as he did. The Silkstones and Mr Tatnall then had the opportunity to agree, if they could, whether or not the notice should be cancelled. In default of agreement, section 73(7) required the registrar to refer ‘the matter’ to the adjudicator. I shall return to what ‘the matter’ embraces.

I move to Part 11 of the Act, headed ‘Adjudication’, from which the office of Adjudicator to HM Land Registry owes its origin. That office replaced the role formerly performed by the Solicitor to HM Land Registry. The office is a judicial one (section 107), independent of the Land Registry, and its creation was no doubt in part referable to the requirements of Article 6 of the Convention on Human Rights and Fundamental Freedoms in relation to the determination of civil rights and obligations.

Section 108 describes the adjudicator’s jurisdiction, which includes ‘determining matters referred to him under section 73(7) …’. Section 109, headed ‘Procedure’, provides in subsection (1) that the ordinary rule is that hearings before him shall be held in public. I shall set out the remainder of section 109 and the material parts of section 110:

Section 111 provides, subject to limitations, that a person aggrieved by the decision of the adjudicator may appeal to the High Court.

The final set of provisions to which I need to refer is The Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 (SI 2003 No. 2171) (‘the AR’). The AR applied to any reference received by the Adjudicator before 25 July 2008 and so applied to the present case, in which the reference was made on 18 June 2008. They have since been amended by rules that came into force on 25 July 2008 (SI 2008 No. 1731), to which there is no need to make further reference.

As the explanatory note to them says, the AR govern the practice and procedure to be followed with respect to proceedings before the adjudicator. They are, on the face of it, a comprehensive set of 61 provisions covering the type of procedural provisions that would ordinarily be expected to be found in a procedural code governing a judicial proceeding. There is no need to summarise them in close detail, although I should refer to certain of them.

Rule 2 is the ‘Interpretation’ provision, and I refer to three definitions. A ‘matter’ means ‘the subject of either a reference or a rectification application.’ Two other relevant definitions are these:

Part 4 of the AR explains the powers of the adjudicator to give interlocutory directions in the course of the reference. They confer a wide range of powers of a case management nature and include in rule 31 a power for the adjudicator at any time to dispose of any matter or matters in dispute by way of a preliminary issue.

Part 5 is headed ‘Hearings and Substantive Decisions’ and opens with an explanation in rule 32 that Part 5 ‘sets out the procedure for the determination of references and rectification applications, the format of substantive decisions and substantive orders and rules on costs.’ Rule 40, headed ‘Substantive orders and written reasons’, sets out what are apparently essentially formal requirements in relation to a ‘substantive order’ made by the adjudicator (for example, that it must be in writing, dated, signed, state the substantive decision reached and so on). Rule 41 is important and is as follows:

It is not, I consider, necessary to refer to any other provisions of the AR. A consideration of the AR discloses, however, an omission that has caused this case’s journey to this court: namely, the absence of any provision dealing expressly with the (if any) right of a party to a reference to withdraw or discontinue his case or as to how the adjudicator might deal with any such claimed withdrawal or discontinuance. In that respect the AR can perhaps be regarded as unusual.

The former Rules of the Supreme Court catered in RSC Order 21 for the withdrawal of steps in an action and for the discontinuance of an action and counterclaim. In defined circumstances this could be done without what used to be called the court’s ‘leave’ (a short, familiar word derived from Old English but now compulsorily superseded in legal parlance by ‘permission’, a word of twice the length derived from the proscribed language of the ancient Romans). Otherwise the discontinuance of an action or counterclaim, or the withdrawal of any claim made in either, could only be done with leave, which could be on such terms as to costs, the bringing of a subsequent action or otherwise as the court thought just. Subject to such terms, any such discontinuance or withdrawal would not be a defence to a subsequent action for the same, or substantially the same, cause of action. If the party who had so discontinued or withdrawn had incurred a costs liability to any other party which had not been satisfied when any new like action was commenced, the court could stay the new action until the costs were paid. CPR Part 38 provides more generously than its forebear for the right of a claimant to discontinue all or part of a claim without the need for permission, although the defendant is entitled to apply to have the notice of continuance set aside. The discontinuing claimant is ordinarily liable to pay the defendant’s costs of the discontinued claim; and, if he discontinued after the filing of the defendant’s defence and proposes to start a new claim arising out of the same (or substantially the same) facts, he will need the court’s permission; and if the claimant only partly discontinues, his prosecution of the remainder of the claim will be stayed until he has paid the costs of the discontinued claim.

The above summary is not intended to be a comprehensive account of the former RSC Ord 21 or the present CPR Part 38. It is, however, intended to show that under both sets of provisions there was and is not, at any rate in all cases, an unqualified right on the part of a claimant to discontinue and then to start a second set of proceedings advancing the same or substantially the same claim. The court could and can control the extent to which this can be done. The purpose of its jurisdiction in that respect is to prevent the claimant abusing the process of the court and unfairly harassing the defendant by repeated claims.

Provisions to like effect are found in other sets of procedural rules. For example, rule 25 in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 permits the withdrawal by a claimant of his claim to an employment tribunal, the rule also enabling the respondent then to apply to have the claim dismissed; and, if it is dismissed, that will prevent a renewed claim against the respondent for the same, or substantially the same, cause of action. Miss Tipples also referred us to the Tribunal Procedure (First-Tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273), of which Rule 17 permits a party to proceedings before such tribunal to withdraw his case or any part of it, although Rule 17 does not also empower the imposing of restrictions upon the re-opening of the like issue subsequently.

There is, however, no express provision comparable to any of these provisions in the AR. The question raised by this appeal is whether, as Mr Morshead submitted, a party to a reference of a matter under section 73(7) of the Act is nevertheless entitled at any stage in the reference to give notice of the withdrawal of his case and so – by unilateral action – to bring the reference automatically to a halt, subject only to the adjudicator’s admitted continued jurisdiction to rule on the costs of the reference; or whether, as Miss Tipples submitted, the adjudicator has a discretion as to whether to permit such a withdrawal and, if so, on terms, including as to the commencement of another claim raising the like issue.

The essence of Mr Morshead’s submission was that an application in relation to the registration or removal of an entry on the register may attract an objection. If it does, and the objection is neither groundless nor disposed of by agreement, the scheme of section 73 is that ‘the matter’ must be referred to the adjudicator for resolution. Until the adjudicator has disposed of ‘the matter’ so referred, the registrar is prevented from ruling on the opposed application. The ‘matter’ referred is the justification of the objection and the function of the adjudicator is to dispose of the objection. If, during the reference, either party withdraws his case (whether in support of the application or the objection), at that point the objection is disposed of, the disputed treatment of the registered title is resolved, there is nothing further for the adjudicator to decide apart from costs and his jurisdiction in the reference comes to an end. The registrar knows by then all he needs to know in order to give effect to the application or objection, as the case may be.

Mr Morshead submitted further that the right of a party so to withdraw his case, and so terminate the reference, can be exercised at any stage in the course of the reference – including, as in the present case, on the morning of the first day of the final hearing. He accepts that the adjudicator can in such circumstances deal with costs and, I understand, that in a case like the present he may also give a direction to the registrar that the objection to the cancellation application is no longer sustained. He cannot, however, proceed to rule on the merits of the objection. There can and will therefore be no decision creating an estoppel between the parties. If the withdrawing party is the objector, he is moreover free the day after his unilateral notice is cancelled to apply for the registration of a like notice on the basis of like evidence as supported the previous one. The registrar will have no choice but to register it; the registered proprietor will be entitled to apply once again to cancel it; and a like reference to the adjudicator will or may follow. If it does, and there is a like withdrawal, that too would bring the second reference to an end. In theory, as Mr Morshead accepted, the same merry-go-round could start all over again. The only way in which the registered proprietor might hope to prevent such apparently abusive conduct by the objector would by recourse to the courts for an injunction.

If that really is how the Act is in this respect supposed to work, there is something seriously wrong with it. With respect to Mr Morshead’s argument, which was advanced with care and moderation, I regard its foundation as counter-intuitive. Its sense is that it is not the adjudicator who is in control of the reference but one or other of the disputing parties. The logic of the argument is that one of the parties can unilaterally, at any stage, bring the reference to a halt and avoid a decision on the merits. It would, in my view, be surprising if the scheme of the Act is to reduce the adjudicator’s role to one as supine as Mr Morshead would have it. In my judgment, it is not.

The first point is that, in a case like the present, ‘the matter’ referred to the adjudicator was one that required him to decide the underlying merits of the objection. He was not concerned simply to decide whether the Silkstones had an arguable case to a prescriptive right of way over No 3. He was required to decide substantively whether they did have such a right of way. He had, therefore, to consider the merits of their claim and his determination of that question would provide the answer as to whether the objection was or was not well founded. It appears to me obvious from the legislation that the adjudicator’s jurisdiction requires him to decide the underlying substance of the objection on its merits. Mr Brilliant so held in paragraph [45] of his Decision in Blackraven Developments Limited, supra. Floyd J so held in paragraph [29] of his judgment under appeal. It is also supported by the decision of Briggs J in Jayasinghe v. Liyanage [2010] EWHC 265 (Ch); [2010] 1 WLR 2106, at paragraphs [16] to [19] (a decision in respect of which Lord Neuberger MR refused permission to appeal on the papers on 14 June 2010, a refusal I endorsed at a renewed oral application on 7 September 2010). In the present case, the adjudicator properly embarked upon proceedings destined to lead to what would in effect be a trial of the Silkstones’ claim to a prescriptive right of way; and, subject to the withdrawal point, he had a duty to rule on the merits of their claim. That ruling would provide the answer as to the justification or otherwise of their objection and would produce a decision that, subject to any appeal, would be binding between the Silkstones and Mr Tatnall as to the formers’ claim that a right of way over No 3 was appurtenant to No 2.

Were the Silkstones entitled, on the first day of the trial, to withdraw their case and objection? In emphasising that they were, Mr Morshead urged how important it might be for an objector in the position of the Silkstones to be able to do so. The type of example he had in mind was one like this. Assume the registration of a unilateral notice protecting a claimed right of way, the making by the registered proprietor of a cancellation application, a consequential objection and a section 73(7) reference. During the reference, the applicant registered proprietor negotiates a highly beneficial sale of his land to a developer, a sale that is conditional upon the removal within a short time-critical period of the unilateral notice and the withdrawal of the claim to the right of way. Mr Morshead emphasised that in such a case the beneficiary of the unilateral notice might, were he to form second thoughts about the quality of his claim to a right of way, be anxious to take immediate steps to remove the blot on the registered title so as to avoid the risk of losing his case and being held to account for having caused a profitable sale to go off. His concern would be the risk of a damages claim under section 77 (‘Duty to act reasonably’), which provides:

I well understand Mr Morshead’s point. I can, however, see no practical difficulty in meeting it in circumstances in which a section 73(7) reference has been made but is not yet determined. If, in self-preservation mode, the objector decides to repent of, and to abandon, his claim to a right of way, and to consent to a cancellation of the unilateral notice, there is no reason why a comprehensive agreement to that effect could not be arrived at with the applicant, and an appropriate consent order reflecting such agreement made by the adjudicator, including a direction to the registrar for the cancellation of the notice. Even though the adjudicator would not have made a decision on the merits of the application, he would, I consider, have jurisdiction to make such an order under rule 41 of the AR, to which I shall return.

The issue before us on this appeal is, however, a quite different one. It is not concerned with the consequences of a consensual resolution of the parties’ differences in the type of example just discussed. It is concerned with whether, following a section 73(7) reference, the beneficiary of an extant unilateral notice is entitled (i) to withdraw his objection or his case justifying it, (ii) thereby to bring the reference to a halt subject only to the making by the adjudicator of a direction to the registrar to cancel the unilateral notice and a ruling on costs, but (iii) to reserve the unqualified right to re-open the same substantive claim to a right of way in the future, either by repeating the same process in the Land Registry or by proceedings in court.

The first thing that appears to me to be clear is that the beneficiary must in principle be entitled, if he wishes, to withdraw his case, an exercise which, however he may express himself, will necessarily ordinarily include (as it did in this case) the withdrawal of his objection to the cancellation. If he does not wish to continue to advance a positive case to the adjudicator, he cannot be compelled to do so. No court or tribunal can require a party to advance a case he no longer wishes to advance. The real question is what, upon being given notice of such a withdrawal, the adjudicator is required or entitled to do.

I do not consider that it can make any material difference to the position whether the objector is the applicant before the adjudicator or (as in this case) the respondent. As it seems to me, he could be either. If he is the applicant, his ‘withdrawal’ will be akin to a proposed discontinuance by a claimant in court proceedings; whereas if he is a respondent, his ‘withdrawal’ may be more akin to an admission by a defendant. The answer to the question raised by this appeal cannot, however, turn on such procedural considerations. The essence of the position – whether the objector is applicant or respondent – is that he is evincing an intention not to press further before the adjudicator his case that he is entitled to the claimed right of way. The question is how the adjudicator is to deal with it.

The AR provide no express answer to that question. Rule 3, however, which incorporates the ‘overriding objective’, requires the adjudicator to deal with ‘the [referred] matter’ justly and must, therefore, require him to consider how to deal with it justly in the light of the withdrawal of the objector’s case; in particular, to consider what decision he ought to make in the light of such withdrawal. In that connection there arises the question of his jurisdiction to make any such decision, about which we had a certain amount of argument. That requires a consideration of rule 41, quoted in [28] above.

The heading to and provisions of that section use the word ‘substantive’ four times. To see what it means, it is necessary to refer to the definitions of a ‘substantive decision’ and ‘substantive order’ in rule 2, and I have set those out in [26] above. In the light of those definitions, I find it difficult to see the significance to be attached to the word ‘substantive’ in rule 41. The first definition shows that ‘substantive decision’ as twice there used means no more than (subject to certain exceptions) a ‘decision’ on the reference; and the second definition shows no more than that ‘substantive order’ in rule 41(1) means an order recording or giving effect to such a decision. A decision is, therefore, the adjudicator’s ruling or judgment on the reference or on a substantial issue arising in it; and an ‘order’ is the document giving formal effect to such a decision.

As it seems to me, therefore, when faced with the withdrawal by either party of his case, the adjudicator will be called upon to make a ‘decision’. That decision is either to be regarded as one made on the reference itself. Alternatively, it will be one made on a ‘substantive issue’ arising in it – namely as to what is to happen to the reference in the light of the withdrawal. The fact that any such decision, let it be assumed, may be to the effect that the adjudicator decides to terminate the reference without ruling on the underlying merits of the issue before him does not mean that he is not making a decision. A decision not to decide a reference on its merits but to bring it to a final conclusion is, I consider, as much a decision on the reference as is a decision on the merits of the issue raised by the reference. I add that, although the heading to rule 41 suggests that that rule is only directed to ‘substantive orders’ that include requirements on the registrar, the rule itself shows that it is not: its use of the word ‘may’ in subsection (1) shows that it also refers to orders that include no such requirement. In practice, though, most such orders will include such a requirement.

What the adjudicator is faced with when he is presented with the withdrawal by the objector of his case is, therefore, the making of a decision on the reference (or on a substantive issue raised in it) requiring the exercise of a discretion. How he will exercise it must, I consider, turn on the particular circumstances of the case before him, including the stage the reference has reached and the reasons for the withdrawal. The adjudicator put the position well and I quote what he said:

I respectfully agree with most of that, although not with the last 12 words of paragraph 28, and summarise my own views below. Floyd J did not agree that the adjudicator had the discretion that he asserted. He said:

I would summarise the position in my own words as follows. A reference to an adjudicator of a ‘matter’ under section 73(7) confers jurisdiction upon the adjudicator to decide whether or not the application should succeed, a jurisdiction that includes the determination of the underlying merits of the claim that have provoked the making of the application. If the adjudicator does not choose to require the issue to be referred to the court for decision, he must determine it himself. In the case of an application under section 36 to which an objection has been raised, the relevant issue will be the underlying merits of the claim to register the unilateral notice. Neither party can by his unilateral act (including by his expressed withdrawal of his application, objection or case) bring the reference to an end. Equally, neither party can be compelled to advance a case to the adjudicator that he no longer wishes to advance. A party who conveys such a wish to the adjudicator can be regarded as conveying his wish to ‘withdraw’ his application, objection or case but it is then for the adjudicator to rule in his discretion as to how to deal with any such withdrawal. That will require a consideration of all the circumstances.

It may perhaps, particularly at the early stage of a reference, be regarded by the adjudicator as just simply to permit the withdrawal and to make an order terminating the reference, making any appropriate direction to the registrar and dealing with costs. If the order says no more, it would no doubt leave an objector free to revive the same claim. That may not necessarily be unjust.

In other cases, particularly when the reference is significantly advanced, to deal with a withdrawal on terms like that may be unjust. It may still be appropriate in such cases for the adjudicator to terminate the reference but he may consider it just to do so not only on terms as to costs, but also on the basis of a direction to the registrar requiring him to reject any future applications of a specified kind from the withdrawing party (see rule 41(2) of the AR). The imposition of such a direction is not a matter that requires the consent of the withdrawing party. It may in other cases, particularly those in which the reference is far advanced, such as was the position in the present case, be appropriate for the adjudicator to proceed to the substantive hearing, rule upon the merits of the issue and then make such order as is appropriate.

Subject to the qualifications that appear from what I have said, I therefore broadly, and respectfully, agree with the way in which the adjudicator approached his jurisdiction. I would respectfully disagree with the narrower approach to the adjudicator’s jurisdiction that the judge favoured.

I add this. During the argument, there was some discussion as to whether it is open to an objector, during a reference to an adjudicator, to reflect a change of mind about the maintenance of his objection by applying for a voluntary removal of his unilateral notice under section 35(3). Mr Morshead submitted that the objector could do so. Miss Tipples was more ambivalent about the position but appeared to prefer the view that he could not. The judge’s view was that, during the currency of a reference, the section 35(3) door is closed. That was (i) because as the validity of the objection was before the adjudicator, the registrar’s power to permit a removal under section 35(3) was suspended; and (ii) the objector has no right under section 35(3) to withdraw a notice, he has at most a right to apply to withdraw it, whereas the section 36 applicant would be entitled to object on the grounds that as the matter of the notice’s cancellation was before the adjudicator it would be unjust to allow such a unilateral withdrawal.

I do not, with respect, agree with the judge about that. I do not understand why the fact of a pending reference to the adjudicator excludes the objector’s right (improbable though it may be in most cases that he will exercise it) of applying for a removal of the notice under section 35(3). There is nothing in the Act or the LRR that expressly constrains the exercise of that right during the currency of a reference; nor can I detect anything in the legislation that impliedly constrains it. The removal of the notice under section 35(3) is not, I consider, dependent upon the exercise of any discretion or judgment by the registration. Subject to being the beneficiary of the notice, paying the fee, filling in Form UN2 properly, removal is a matter of right. The discussion in argument about a possible recourse to section 35(3) arose in the context of the consideration of Mr Morshead’s example of the objector who, during a reference, has a change of heart and wishes to remove the blight from the applicant’s title as promptly as possible. I hope it is clear from what I have said that I would not regard any removal of the notice by an exercise of the section 35(3) right as automatically bringing the reference to an end, any more than does the expressed wish of the objector to withdraw his objection and case. The proceedings before the adjudicator will still remain alive until he has made a decision disposing of them.

We are not required by the appeal to consider the manner in which the adjudicator exercised his discretion in relation to the particular facts of the present case. The registrar’s appeal was confined to the proposition that what the adjudicator did was simply beyond his jurisdiction. For the reasons I have given, I disagree with that proposition. The judge, for different reasons, agreed with the route taken by the adjudicator and dismissed the appeal that was before him. For the reasons I have given, I would also dismiss the registrar’s appeal to this court.

I agree.

I also agree.