Stuart John Pilbrow v Nicola Jane Eileen Glanville & Anor

This is an appeal from a costs order made by the First-tier Tribunal following the withdrawal of the appellant’s application for registration of title to land by adverse possession. It has been determined under the Tribunal’s written representations procedure. The appellant has been represented by Hodkin & Company, solicitors, and the respondents by Mr Simon Bell of counsel.

The appellant, Mr Pilbrow, lives at Green Oaks, Imberhorne Lane, East Grinstead, which he bought in 2006. On 23 June 2023 he applied to HM Land Registry to be registered as proprietor of an area of land adjoining his property, on which he had built (with planning permission). That land (“the disputed land”) forms part of the registered title to Tilkhurst Farm, of which the respondents are the registered proprietors. The Land Registration Act 2002 made provision, in its Schedule 6, for the limited circumstances in which it is possible to be registered as proprietor of registered land by adverse possession; the appellant in his application relied upon paragraph 5(2) and 5(4) of Schedule 6 (proprietory estoppel; and a reasonable belief that the land, being adjacent to his own, was his).

Section 73 of the Land Registration Act 2002 provides that anyone may object to an application to the registrar. If the registrar takes the view that the objection is not groundless, and if it cannot be disposed of by agreement, then the registrar must refer the matter to the FTT. The respondents, Mrs Nicola Glanville and her mother Lady Eileen Blount, were given notice of the application by the registrar, and in January 2024 they objected to it. The matter was referred to the FTT.

The First-tier Tribunal (Property Chamber) is for the most part a no-costs jurisdiction; one of the exceptions to that is its jurisdiction under the Land Registration Act 2002 to determine references from HM Land Registry (see the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, rule 13(1)(c)).

The appellant filed a statement of case in the FTT; the respondents’ statement of case in response, dated 4 August 2024, stated that they were the registered proprietors of the land, and argued that the appellant had been aware all along that the land was not his. The statement of case also explained that the respondents had been joint proprietors of their land since 2005, and that before then it was held by Mrs Glanville with Lady Blount’s late husband, Sir Walter Blount. Because Lady Blount was then aged 103 and in failing health she had made a witness statement in January 2024 at the time the respondents objected to the application to HM Land Registry.

Lady Blount’s witness statement asserted that she and her daughter owned the disputed land, and challenged the appellant’s case on proprietary estoppel.

On 21 August 2024 the FTT gave its usual directions, including for disclosure. The respondents filed a list of documents, which included a 2007 planning permission, some plans and photographs and some correspondence. Mrs Glanville filed a witness statement on 8 February 2025, in which she challenged the appellant’s account of events.

On the same date Mr Charles Glanville, Mrs Glanville’s husband and therefore Lady Blount’s son-in-law, filed a witness statement. He stated that since 1993 beneficial ownership of one half of Tilkhurst Farm had been held by the two respondents upon trust for the Glanville’s eldest son, Edward Glanville “upon his attaining the age of 35 years;” that Edward was then 32 and did not have an interest in possession in the property; and that therefore by virtue of paragraph 12 of Schedule 6 to the Land Registration Act 2002 title to the land could not be acquired by adverse possession.

Paragraph 12 of Schedule 6 reads as follows:

“A person is not to be regarded as being in adverse possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust, unless the interest of each of the beneficiaries in the estate is an interest in possession.”

The respondents then applied for permission to amend their statement of case, and the appellant withdrew his application.

Both parties applied for their costs.

The appellant’s argument in the FTT was quite simply that the respondents had kept quiet about the trust of the land, which amount to a complete defence to his claim, for many months after his application to HM Land Registry, when it should at the latest have been revealed in the respondents’ initial objection to his application. His time and costs had been wasted, and he sought costs on an indemnity basis. The respondents were obviously best placed to know about the trust. The trust had been registered in 2023 with the Trust Registration Service (in accordance with recent anti-money-laundering regulations). That register is not a public register. But the fact that the trust had been registered made it clear that the respondents were aware that they were trustees. He should therefore have his costs.

The respondents claimed their costs, on the basis that they had made repeated attempts to settle the matter, that the appellant had built on land that he knew was not his, and that the appellant’s solicitor should have been aware that Tilkhurst Farm had been in the Blount family for generations and should have asked them if it was held on trust. Mrs Glanville in a witness statement said that the respondents had been “aware of the existence of a trust” but “unaware of the detail of the trust”.

The FTT made no order for costs, and gave brief reasons:

The appellant appeals that order, with permission from this Tribunal.

The appellant argues that the judge in making no order for costs took into account an irrelevant consideration, namely that fact that he might not have succeeded absent the trust, and that the order was perverse and irrational since he would not have incurred costs in the FTT had the trust been disclosed when it ought to have been.

The respondents say that the judge undertook a careful and reasoned analysis, looked at the matter of costs in the round, and made an unimpeachable decision. They say that the points made by the appellant fall far short of the high bar set against interfering with the FTT’s discretionary jurisdiction on costs.

I am keenly aware that costs are matter for the discretion of the FTT and that the Tribunal will not interfere with an order for costs – even if it disagrees with the order made - unless the judge has exceeded the generous bounds of discretion, by taking into account an irrelevant factor for example, or by making an irrational decision. I am extremely reluctant therefore to interfere.

I have read Mrs Glanville’s explanation to the FTT of why they did not reveal the trust earlier. I completely accept that the failure was inadvertent; she did not know the terms of the trust, and did not have the trust in mind at all until early 2025 when documents came to light. I do not think Mrs Glanville was saying that she had forgotten that she was a trustee; I will assume in her favour that she had not. But she did not know the terms of the trust. Whether Lady Eileen did is unknown but I assume that she did not have the trust in mind when she made her witness statement early in 2024.

Even on the basis that the respondents did not deliberately withhold information about the trust, it is impossible to disagree with the judge’s conclusion that they “could and should” have disclosed it much earlier – ideally at the point when they objected to the application to HM Land Registry, but certainly once matters progressed to the FTT. Understandably, she did not know anything about paragraph 12 of Schedule 6 to the Land Registration Act 2002, and the respondents had not instructed solicitors. But they had advice from counsel on a direct access basis and it is astonishing that they did not tell counsel about the trust. Had they done so they would have been advised them to check its terms and their cast-iron defence would have come to light. A year would not have been wasted on pointless litigation and thousands of pounds in legal costs would have been saved.

I accept entirely that the respondents’ omission was inadvertent. But they are trustees. It is their duty to be aware of the trust and of its terms, to know for whom they hold the land, to know what Mrs Glanville described as “the details of the trust”. No doubt the trust is a family arrangement that runs along peaceably and has not required the trustees to give it their attention for practical purposes, but legally they are required to have it in mind.

The judge’s reasoning, going through the propositions that I have listed above at paragraph 14, indicates that had he stopped at point (e) he might have made a costs order in favour of the appellant, and that he did not do so because he found point (e) to be outweighed by the fact that the appellant might in the end not have won.

I agree with the appellant that that point was irrelevant. His case had not been tested. It was certainly not regarded by anyone as a hopeless case – there had been no application to strike it out – and it was not for anyone to say whether or not he would have been successful. But that was not the point. The fact was that he could not succeed, and had wasted time and costs on pointless litigation because the respondents did not tell him that they had a cast-iron defence when they could and should have done so.

It is certainly the case that new points do “arise” in the course of litigation which may make the difference as to who wins or loses. But that is not an adequate description of what happened here; the point that “came to light” was one which should have been in the minds of the respondents from the outset. Their behaviour was so unreasonable that it should have costs consequences, and merely not requiring the appellant to pay the respondents’ costs is not an appropriate response, and not a response that a reasonable tribunal would have made.

I have to agree with the appellant that the judge’s conclusion was irrational. He failed to give proper weight to the unreasonable behaviour of the respondents, and was led astray by an irrelevant consideration.

I set aside the FTT’s decision about costs, and substitute the Tribunal’s judgment that the respondents should pay the appellant’s costs of the proceedings in the FTT, to be summarily assessed on the standard basis if not agreed. I have ordered assessment on the standard basis because neither party has made submissions in the appeal as to why costs should or should not be paid on an indemnity basis, and in light of the level of costs in issue it is not proportionate to prolong the proceedings in order to invite representations on that point.