Graham Wolloff & Anor v Jagruti Kantilal Patel

This appeal is concerned with the inter-relationship of the dispute resolution provisions in the Land Registration Act 2002 and the jurisdiction provisions of the bankruptcy code in the Insolvency Act 1986.

The appellant trustees in bankruptcy of Alexander James Dhillon (“the trustees”) appeal against a decision of the First-tier Tribunal (Property Chamber) (Judge David Taylor) dated 17 January 2019 with the permission of that Tribunal. The First-tier Tribunal (“the Tribunal”) decided that the beneficial interest in 120 Springfield Drive, Ilford, IG2 6QT (“the Property”) was wholly owned by the respondent, Ms Patel and that the bankrupt had no interest in it (other than legal title) prior to his bankruptcy.

The matter came before the Tribunal as a reference from the Chief Land Registrar under section 73(7) of the Land Registration Act 2002 (“the 2002 Act”).

It arose following an application by the trustees in Form RX1 dated 24 November 2016 (“the Application”) to enter a restriction in standard Form J against the registered title to the Property, which was registered in the joint names of the bankrupt and the respondent. Both registered proprietors objected to the Application and, in due course, with no resolution between the trustees and the respondent having been agreed, the Land Registrar referred the respondent’s objection to the Tribunal for determination.

The respondent’s objection was that she was the sole beneficial owner of the Property and that accordingly the bankrupt and the trustees had no interest and accordingly nothing to protect by a Form J restriction.

The Tribunal had to decide two matters. First, whether it had jurisdiction to decide whether the bankrupt had owned a beneficia interest in the Property. The trustees submitted that only the court could decide that question. Second, if so, whether the registered proprietors held the Property on constructive trust for the respondent alone. If the bankrupt had any beneficial interest in the Property then the restriction was appropriate.

The Tribunal decided that it had jurisdiction to decide the question of beneficial ownership by virtue of section 108(1) of the 2002 Act, and it decided it in favour of the respondent. Consequently, it made an order directing the Chief Land Registrar to cancel the Application.

The trustees sought permission to appeal on grounds that the Tribunal was wrong to conclude that it had any jurisdiction to decide who beneficially owned the property; alternatively, that it erred in exercising a discretion not to require the parties to start court proceedings to decide it; further, that the decision failed to address arguments about the source of the purchase monies, and finally that the Tribunal had gone wrong in failing to find that the parties had previously compromised the question of the validity of the Application.

The Judge granted permission to appeal on the question of jurisdiction but refused permission on the other grounds, save to the extent that they raised points that overlapped with the first ground. It is clear from the Tribunal’s reasons for refusing permission to appeal that it did not give permission to appeal any exercise of discretion in relation to directing that the matter be heard by the court. In their statement of case, the trustees have not sought to renew their application for permission to appeal on any other grounds.

The short but important question raised on this appeal is therefore whether, despite the terms of sections 73 and 108 of the 2002 Act, the tribunal’s apparent jurisdiction is impliedly excluded by the terms of the Insolvency Act 1986, or alternatively must be exercised by requiring the parties to start court proceedings, in a case where the matters to be decided are questions of fact or law that relate to a bankruptcy.

The material facts can be shortly stated.

The bankrupt and the respondent were introduced to each other in early 2007. The bankrupt lived in Wolverhampton; the respondent in Ilford. They became friends. The respondent wished to buy a house in Ilford and the bankrupt agreed to a joint purchase. The purchase price of £357,000 was funded as to £301,500 by a mortgage advance made by Halifax to both buyers and as to the balance from the respondent’s own funds. The respondent lived in the Property and the bankrupt did not.

On 19 October 2016 the bankruptcy order was made. On 10 November 2016 trustees in bankruptcy were appointed. The trustees are their successors. The Application for a restriction was made on 24 November 2016. The respondent objected to the application by letter dated 9 January 2017. She contended that she was the sole beneficial owner; that the bankrupt had only helped her to obtain a mortgage, by lending his name to the purchase, and that it had been agreed or understood and intended that the bankrupt would have no interest in the Property, which was to be the respondent’s home.

As the Judge held, the respondent’s account (which was supported by a short written statement made by the bankrupt) was truthful and therefore the Property had been and was held on constructive trust for the respondent alone. There was no conflicting factual account from the trustees: at trial they challenged the truth of the respondent’s story by reference to various documents held by the bankrupt or disclosed by the respondent.

Section 86(4) of the 2002 Act provides:

Section 42(1) of the 2002 Act provides:

The standard Form J restriction, specified in Schedule 4 to the 2003 rules, is in the following terms:

registered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction,

registered charge dated [date] referred to above, other than a disposition by the proprietor of any registered sub- charge of that charge registered before the entry of this restriction,

Section 73 of the 2002 Act, as amended, provides (so far as material):

Section 108(1) of the 2002 Act, as amended, provides:

Section 110(1) of the 2002 Act, as amended, provides:

The relevant provisions of the 1986 Act, as amended, are the following:

Before the Tribunal, the trustees contended that this case was governed by s.86(4) of the 2002 Act, and that accordingly the Tribunal’s role was limited to deciding whether the bankrupt appeared to be interested in the Property, whereupon it should have directed entry of the restriction and left the matter of the true beneficial ownership to be decided in the bankruptcy proceedings, if and when the bankrupt’s apparent interest was sought to be realised or upon any application made by the respondent to determine her interest as against the trustees.

Mr Bowles submitted that this interpretation of the 2002 Act was consistent with the scheme of the bankruptcy parts of the 1986 Act, and in particular s.363 of that Act, which confers exclusive jurisdiction on the High Court or the county court to decide “all questions, whether of law or fact, arising in any bankruptcy”. There was not, he argued, a parallel jurisdiction in the Tribunal to make final decisions of fact or law, and in the case of bankruptcy restrictions the Land Registrar should enter the restriction without going further than asking himself whether the bankrupt appeared to have an interest. The 2002 Act regime, so construed, therefore reflected the requirements of the 1986 Act as regards the court’s jurisdiction.

Judge Taylor gave a lucid and convincing explanation of why the argument of the trustees was wrong. Section 86(4) applies in a case where the bankrupt is the sole proprietor of registered land, in which circumstances the property has by operation of law vested in the trustee in bankruptcy but the register of title has not yet caught up. The restriction in such a case prevents registration of any disposition of the property before the trustee is registered.

Where on the other hand the legal estate is jointly owned (or owned by another) but the bankrupt has a beneficial interest in it, the restriction is of a different kind, which recognises that the legal estate has not vested in the trustee, and it provides protection by another means. This is to ensure that the trustee is forewarned of the fact that a disposition is going to be made, thereby enabling the trustee to take whatever steps are appropriate to protect the proceeds of the disposition in the event that the bankrupt’s interest will be overreached. That quite different situation is governed by sections 42 and 43 of the 2002 Act and rule 93(j) of the 2003 Rules. Accordingly, the Land Registrar is not concerned with the question of whether the bankrupt is registered as proprietor but with whether it is necessary or desirable to enter a restriction to protect a right or claim in relation to the property. A trustee in bankruptcy will have such a right or claim if a beneficial interest under a trust of land has vested in him: rule 93(j).

The trustees now rightly accept that Judge Taylor was correct for the reasons that he gave in rejecting that argument.

Having rejected the trustees’ argument based on section 86(4), the Tribunal went on to address the question of the extent of its jurisdiction in a “beneficial interest” case. Judge Taylor asked himself what “the matter” was that was referred to the Tribunal under s.73(7) and answered that by reference to the decision of Briggs J in Jayasinghe v Liyanage [2010] EWHC 265 (Ch). In that case, Briggs J held that the matters referred were the application, the objection and the residual question of whether it was necessary or desirable for the restriction to be registered. He added:

Finally, Judge Taylor asked himself whether “the matter” in this case involved the question of whether the bankrupt ever had a beneficial interest in the Property. He held that the court had jurisdiction to determine whether or not the bankrupt had a beneficial interest in the Property at the date of his bankruptcy. In this particular case, the answer to that question depended on whether the respondent’s case that she was the sole beneficial owner was accepted or rejected. The Tribunal did not have to decide – and did not seek to decide – the extent of the bankrupt’s interest if he had one.

Subsequently to the decision of the Tribunal in this case, the Deputy President of the Upper Tribunal (Lands Chamber), Martin Rodger QC, had to consider a similar issue in the case of Hallman v Harkins [2019] UKUT 245 (LC). There was no bankruptcy complication in that case. The question was whether the First-tier Tribunal was right to determine whether an applicant for a restriction had a beneficial interest in the property and if so the amount of her interest, rather than refer the issues to be decided by the court.

The Deputy President referred to the decision of Briggs J in Jayasinghe and other cases that do not directly address the issue but in which there are relevant observations. He held that the First-tier Tribunal had jurisdiction to find that the applicant had a beneficial interest that should be protected by a restriction, but that it had no jurisdiction to determine the extent of her beneficial interest. The reason was that the Tribunal had to determine matters referred to it for a particular statutory purpose, namely to dispose of the application for a restriction and the objection. As long as an applicant had some beneficial interest, it made no difference to the disposal of the application what the extent of that interest was. Accordingly, the Tribunal’s jurisdiction was limited to deciding the issues that were necessary to dispose of the application. The Deputy President observed that, where there is a live dispute as to the extent of any beneficial interest, it may be better for the Tribunal to refer both issues to the court for a single determination.

Despite having abandoned their argument based on section 86(4) of the 2002 Act, the trustees argue that the Tribunal had no jurisdiction to determine whether the bankrupt had a beneficial interest in the Property prior to his bankruptcy. In reality, the sole reason is that such jurisdiction would be inconsistent with the terms of the 1986 Act that confer on the court exclusive jurisdiction in relation to issues of fact or law arising in a bankruptcy, though the trustees urge that the conclusion reached makes good practical sense.

Mr Bowles contended that the true interpretation of s.363 of the 1986 Act, read together with s.373, was that the High Court and the county court have jurisdiction in relation to matters such as whether the bankrupt had a beneficial interest in the Property to the exclusion of any other court, tribunal or person. That being so, section 108 of the 2002 Act has to be read down, in the context of the 1986 Act, so that there is no conflict between the exclusive jurisdiction conferred on the High Court and county court and the jurisdiction conferred on the First-tier Tribunal. He relied on what Lloyd LJ said in Donaldson v O’Sullivan [2008] EWCA Civ 879 at [38]:

That was a case concerned with the lawfulness of the appointment by the court of a new trustee in bankruptcy by means of a “block transfer” order. The question was whether, absent any express provision in the 1986 Act, the court had power to appoint a new trustee in bankruptcy in that way. Section 363 among others was invoked as the basis of a general jurisdiction to make such orders as were necessary or appropriate. In the paragraph relied upon, Lloyd LJ drew attention to the type of case in the Chancery Division in which the court is concerned with administering funds or estates and distributing the assets. As regards insolvency, he then drew a further distinction between those processes that involve and those that do not involve control by the court. The sentence immediately preceding that relied upon by Mr Bowles reads:

In that context, it is clear that what Lloyd LJ was saying was not that the designated court had exclusive jurisdiction in relation to any matter related to the bankruptcy or winding up but that the court had a general supervisory control over the whole process, as distinct from other procedures in which the court had only a limited involvement. The conclusion was that the court therefore had very wide powers, arising from that general control, which were not limited to powers expressly conferred by statute.

In my judgment, that case does not assist Mr Bowles in seeking to establish that the First-tier Tribunal can have no jurisdiction because the court has exclusive jurisdiction. It says nothing about the exclusivity of the jurisdiction, as distinct from its breadth, or about the need to override a limited jurisdiction expressly conferred on another tribunal. It was not addressing the kind of issue that is live here.

An example of the right approach to balancing the broad jurisdiction of the bankruptcy court and another express statutory jurisdiction seems to me to be the decision in Revenue and Customs Commissioner v Ariel [2016] EWHC 1674 (Ch); [2017] 1 WLR 319.

In that case, the First-tier Tribunal had given permission for HMRC to issue a third party information notice, under Schedule 36 to the Finance Act 2008. The notice was to be served on trustees in bankruptcy and related to the tax affairs of the bankrupt. The trustees were for those purposes third parties, and were not treated as the taxpayer. The trustees applied to the court for directions and the bankruptcy registrar directed non-compliance to a significant extent with the requirements of the notice.

On appeal, Mann J held that the registrar could not give directions that overrode the valid notice that the Tribunal had permitted to be served. Although the bankruptcy court had broad supervisory jurisdiction, clear statutory wording would be required to justify the displacement of part of a separate statutory regime. The judge rejected (at [53]) the argument that general provisions, such as sections 303 and 363 of the 1986 Act, could interfere with rights obtained independently of the bankruptcy and supported by other statutory provisions. At [55] he held that compliance with a validly approved notice was not in any event a question “arising in any bankruptcy” for the purposes of section 363.

Although the issues in that case were slightly different and did not concern two potentially competing jurisdictions for deciding questions of fact or law, nevertheless the decision illustrates the principle that general provisions in the 1986 Act cannot be used to override other specific statutory provisions. More specific statutory provision would be required.

The right approach is to construe the language of each statute objectively, in the context of the Act in question and the legislative framework as a whole, with a view to avoiding if possible rather than finding inconsistency.

The separate statutory codes do not appear to conflict. Nevertheless, the trustees’ argument was that it was implicit in the relevant provisions of the 2002 Act that an exception applied in relation to any bankruptcy matter, to avoid a conflict with the exclusive bankruptcy jurisdiction of the court. The effect of that would be that no question of fact or law relating to a bankrupt (or at least “arising in any bankruptcy”) could be decided by the Tribunal.

I reject that argument. The jurisdiction provisions of s.108 of the 2002 Act do not exclude such questions, nor do they require a mandatory direction to be given to start court proceedings in such a case. If Mr Bowles is right and any jurisdiction of the Land Registrar under the Land Registration Act 1925 and Land Registration Rules 1925 was truncated when the 1986 Act came into force, it is very surprising that, when a new land registration regime was brought into force in 2003, no exclusion or requirement for a mandatory direction in bankruptcy cases is expressed in the 2002 Act. The Act in terms provides for applications for bankruptcy restrictions and so a conflict or potential conflict with the insolvency legislation, if there was one, could not have been overlooked by the Parliamentary draftsman.

In my judgment, there is no conflict because sections 363 and 373 of the 1986 Act do not prevent any matter properly falling within the jurisdiction of the First-tier Tribunal from being decided there. Whether the bankrupt had some beneficial interest in the Property is a matter that the Tribunal needed to decide in order to determine whether the objection succeeded and whether a restriction was necessary or desirable. Further, the question raised was whether the bankrupt owned any beneficial interest immediately before the bankruptcy order; it was not a question arising in the bankruptcy itself, such as whether identified property is or becomes part of the bankrupt’s estate, or whether a disposition of such property was invalid. If the bankrupt had any beneficial interest in the Property then it indisputably was part of his estate.

A decision that the Tribunal has jurisdiction to determine whether the bankrupt had any beneficial interest does not threaten any proper interest of the bankruptcy court in supervising the adminstration of the bankrupt estate. Importantly, the Tribunal has a discretion to direct that “the matter” be decided by a court, where that would provide a more appropriate hearing. As indicated in the Hallman v Harkins case, that is likely to be so where there is a live dispute about quantum. Otherwise, in most cases, a determination in a more informal and specialist part of a tribunal, to which the matter is first referred, is likely to facilitate earlier and cheaper administration of the bankrupt’s affairs, and also appropriate protection for any interest of the trustees being put in place at an earlier time, to the benefit of the creditors. In a case where (as Mr Bowles suggested might arise) the trustees in bankruptcy need time to investigate the bankrupt’s affairs before they could have an effective trial of the matters in dispute, normal case management would ensure that a fair trial would take place at an appropriate time, with the additional option for the Tribunal to direct the parties to start court proceedings, if that might provide a better forum for the hearing of any interim application or where other particular circumstances make it more appropriate.

Mr Bowles also submitted that if the Tribunal had jurisdiction there was a risk of conflicting decisions being reached on matters relating to a bankrupt, or alternatively that the res judicata or abuse of process principles could obstruct later proceedings in the bankruptcy court. These submissions were advanced in rather general terms and I did not and do not understand why a determination in the Tribunal of whether a bankrupt has a beneficial interest in a property (but not the extent of it) should lead to any particular difficulty. Naturally, the decision (if not appealed) would bind the parties to it and would prevent the losing party from later seeking to prove the opposite against the successful party. But that would be the case wherever the issue was decided.

The sentiment underlying this argument appeared to be that trustees in bankruptcy might find themselves “bounced” into an early or inadequate determination that might prevent them from fighting the issue at a later time. But, again, if there is a need for time to investigate, or if there are particular reasons in a given case why a court determination would be more appropriate, this will be achieved. Good case management and judicious exercise of a discretionary power are assumed to be and are available in the dispute resolution forum that Parliament decided was appropriate.

On the other hand, the trustees’ argument about how the Tribunal’s jurisdiction would work, if the question of beneficial interest could only be decided by the bankruptcy court, gives rise to real difficulty with the scheme in the 2002 Act. The application for a restriction and the objection each being properly made and no accommodation having been reached, the Land Registrar has to refer the matter to the Tribunal. The trustees submit that in those circumstances the Tribunal should have directed court proceedings to be issued and, in the meantime, entered a restriction on the title to the Property.

That would no doubt have been a satisfactory outcome from their perspective and perhaps in many cases. However, the 2002 Act does not provide for any interim disposal of the application prior to a decision on the validity of the objection. Under s.73(5) of the Act, the Land Registrar cannot determine the application for a restriction until the objection has been disposed of. The suggestion that it can be done appears to be a hangover from the trustees’ argument based on s.86(4) of the 2002 Act. The matter to be decided by the Tribunal includes the question of whether a restriction is to be entered (see the Jayasinghe case, above), which ex hypothesi the Tribunal does not have power to determine, and once the matter is the subject of court proceedings the Tribunal proceedings are stayed: rule 39(2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

The trustees’ answer to this difficulty was that although the Tribunal does not have jurisdiction to decide any question of fact arising in the bankruptcy it nevertheless has jurisdiction to make an interim direction for the entry of a restriction pending the court’s decision. In my judgment, that makes the trustees’ construction of the 2002 Act even more problematic, since they are trying both to imply an exception or a requirement for a mandatory reference and at the same time create a partial jurisdiction to determine the application where there is no power to dispose of the objection. That is an untenable construction of the statutory provisions.

In my judgment, the appeal fails. The relevant provisions of the 2002 Act are clear. They give the First-tier Tribunal jurisdiction, on a referral under s.73(7), to determine such facts relating to the application and the objection as are necessary to enable it to direct the Land Registrar whether or not it is “necessary or desirable” for a restriction to be entered on the register.

For completeness, it is appropriate to note that the court with bankruptcy jurisdiction has power, under s.285(1) of the 1986 Act, to “stay any action, execution or other legal process against the property or person of … the bankrupt”. Whether that power is exercisable, or should properly be exercised, in a case where the First-tier Tribunal has jurisdiction to determine whether a bankrupt had a beneficial interest in registered land is a question that should be determined with the benefit of full argument in a case in which the issue arises.