REF/2011/0510

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Dr Richard Eaton Pearson

APPLICANT

and

Lillie Eileen Julia Foster (nee Worden)

RESPONDENT

Property Address: The Mill House, 76 Dorchester Road, Maiden Newton, Dorchester. DT2 0BG.
Title Number: DT373770

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Yeovil County Court
On: Monday 28 November 2011

Applicant Representation:	Mr Nicholas Berry, of Counsel, instructed by Messrs	Scott Rowe, Solicitors
Respondent Representation:	Initially the Respondent retained Messrs Simon Jackson, Solicitors. At the hearing the Respondent appeared in person, with her husband Mr Eric Foster playing the role of a lay representative. After the hearing she subsequently instructed Messrs Porter Dodson, Solicitors. 

SUBSTANTIVE DECISION AND DECISION ON COSTS

KEYWORDS Registration of profit à prendre in gross of fishing rights; order made by the Adjudicator giving effect to a consent order made by the parties; Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 Rules 33, 39(2), 39(3), 42.

Cases referred to:

THE APPLICATION
1.	Since 28th February 2003 Dr Richard Eaton Pearson (“the Applicant”) has been the registered proprietor with title absolute of the freehold property known as Maiden Newton House and situate at 9 Church Road, Maiden Newton, Dorchester DT2 0BG (“Maiden Newton House”) which is registered at HM Land Registry under title number DT215770. By an application dated 12th August 2010 in Form FR1 (“the Application”) the Applicant applied to HM Land Registry to register a profit à prendre in gross in respect of fishing rights and associated easements (“the Fishing Rights”) over adjoining land and premises known as The Mill House and situate at 76 Dorchester Road, Maiden Newton, aforesaid (“The Mill House”).  Since 9th June 2009 the Respondent has been the registered proprietor with title absolute of The Mill House under title number DT373770.  The land comprised in title number DT373770 is shown edged red on the official copy of the title plan (“the Plan”).  I should add that the Respondent is also registered as the freehold proprietor of the Mill Cottage and Forge Cottage under title numbers DT212500 and DT314316, respectively.  All three properties are apparently collectively known as Maiden Newton Mill.

2.	The rights sought to be registered by the Applicant are said to have arisen under a Conveyance dated 8th April 1941 and made between (1) John Lothrop Morley Sheridan (2) John Lothrop Morley Sheridan and Charlotte Elizabeth Sheridan, and (3) Wilfred Vain Fryer (“the 1941 Conveyance”).  The Applicant is the owner of the Fishing Rights pursuant to a Conveyance of such rights dated 28th February 2003 and made between (1) Parafic Corporation, and (2) the Applicant.  At the stage of their acquisition by the Applicant it was not possible for such rights to be registered in gross with absolute title.  However, following the changes brought about by the Land Registration Act 2002 which came into force on 13th October 2003, it thereafter became possible for such rights to be voluntarily registered.  

3.	Following the making of the Application the Land Registry made a Requisition dated 17th November 2010 (“the November 2010 Requisition”) under cover of which three illustrative plans were sent to Messrs Scott Rowe, the solicitors instructed by the Applicant. In this Requisition the Land Registry sought confirmation that the third plan (described as “Plan C”) delineated the rights acquired by the Applicant in 2003.  In their answer dated 2nd December 2010 Messrs Scott Rowe provided such confirmation. Thus for the purposes of the Application the Fishing Rights are delineated in red on Plan C. The Application has been given the pending title number DT380928.

4.	Notice of the proposed registration was served on the Respondent in Form B148 dated 23rd December 2010, and she objected to the registration of such rights in a letter from her solicitor dated 17th January 2011.  The grounds specified in that letter were that the rights had been abandoned and no longer subsisted. On the 27th May 2011  the matter was then referred to the Adjudicator and a Case Summary with supporting documents sent to the Office of the Adjudicator. 

5.	Following the various procedural stages, the Application was set down for hearing on 28th and 29th November 2011 in the Yeovil County Court, a site view having been arranged for 30th November 2011.  However, on the first day of the hearing representations were made by both sides as to the state of readiness of the case, and in particular to the fact that a considerable amount of further detailed evidence had been produced by the Respondent and Mr Foster shortly before the hearing. Having regard to these representations, and at the request of the Respondent and her husband, I adjourned the Application and made directions as to the further conduct of the case.  I also suggested to the Respondent that she should seek and obtain legal advice. This she agreed to do, and she subsequently instructed Messrs Simon Jackson. I should state that the site inspection went ahead as originally envisaged.

The consent order
6.	Eventually, the Application was re-listed for hearing on 17th, 19th and 20th April 2012.  However, shortly before the hearing the parties’ legal representatives notified this Office that a settlement had been reached between the parties and a request was made for the hearing to be taken out of the list. This duly occurred.  A signed consent order dated 16th April 2012 was received by fax and e-mail on that day from the parties’ legal representatives (“the April 2012 Consent Order”).  This is in the following terms:

“By Consent

IT IS ORDERED that:-

1.	The Respondent hereby withdraws her objection in the adjudication.
2.	The Respondent do pay the Applicant’s costs of the adjudication on the standard basis to be assessed if not agreed, such costs to be paid within 14 days of the cost officer’s certificate or agreement, whichever is the earlier.”
	
7.	In their personal email dated 16th April 2012 the Respondent and her husband wrote directly to the Adjudicator to the effect that they had decided to withdraw from the case as it was affecting their health. However, they went on to make various points as to the Applicant’s case including repeating their claim that the Applicant did not have title to the Fishing Rights as asserted by him.

8.	An order was subsequently made by the Deputy Adjudicator dated 14th May 2012 (“the May 2012 Order”)  in the following terms:

“UPON the Respondent withdrawing her objection in the light of the recent correspondence between the parties’ solicitors.

BY CONSENT

IT IS ORDERED that:-
1.	The Chief Land Registrar is required to give effect to the original application dated 17 August 2010 for first registration of a profit a prendre in gross as if the objection had not been made.
2.	The Respondent do pay the Applicant’s costs of the adjudication on the standard basis to be assessed if not agreed, such costs to be paid within 14 days of the cost officer’s certificate or agreement, whichever is the earlier.”

	Prior to the May 2012 Order being made correspondence passed between the parties’ legal representatives as to the proposed Recital to the Order. This was eventually agreed by both firms of solicitors in early May in the terms subsequently made, as set out above.
9.	However, as it subsequently transpired, the Land Registry refused to give effect to the May 2012 Order.  This was on the basis that from about mid May 2012 it had received a quantity of documentation from the Respondent (now acting in person) and her husband which the Land Registry variously described as “additional evidence” and “new evidence”.  In correspondence between the Land Registry and Messrs Scott Rowe the Land Registry stated that severe doubts had now been cast upon the Applicant’s title to the Fishing Rights as a result of this later correspondence, and that the “new evidence has demonstrated that title to the Profit probably lies elsewhere”. 

10.	Eventually on 18th October 2012 the Land Registry referred the matter back to the Adjudicator on the basis that a new objection had been made to the original Application.  This was treated by this Office procedurally as a second reference (REF/2012/1003) (“the Second Reference”), and Mr Foster was subsequently made a Second Respondent to the Second Reference. The Second Reference culminated in a hearing on 18th March 2013 which had been ordered pursuant to the provisions of Rule 33 of the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 (as amended) (“the 2003 Rules”).  I refer to the background circumstances which gave rise to that hearing in more detail in my Decision in the Second Reference (“the Further Decision”).

11.	As I have set out in the Further Decision, during the hearing of the Second Reference on 18th March 2013 the Respondent and Mr Foster directly, and through their lay representative, sought to persuade me that the Order made by the Deputy Adjudicator on 14th May 2012 should be set aside or “revoked” on the basis that the consent order had been signed on an “uninformed” basis, and following defective legal advice.  This entreaty was repeated in a letter dated 26th March 2013 to this Office. They also suggested that they might commence proceedings elsewhere, such as in the Chancery Division of the High Court, although the cause of action was unspecified.

THE LEGAL POSITION
Rule 39(2) and (3) of the 2003 Rules
12.	In my judgment there is an important legal consideration to be considered, namely the effect of the terms of Rule 39(2) and (3) of the 2003 Rules.  These provide as follows:-

“(1) …
(2) A substantive decision of the adjudicator, whether made at a hearing or without a hearing, must be recorded in a substantive order.
(3)The adjudicator may not vary or set aside a substantive decision”. 

Thus, in effect the Adjudicator may not vary or set aside a substantive decision, and that a substantive decision of the Adjudicator must be recorded in a substantive order. Only the High Court on appeal can vary or set aside a substantive decision or order of the Adjudicator.

THE DECISION
13.	I find that the parties had agreed to the terms of the April 2012 Consent Order through their legal representatives. Effect was given by the May 2012 Order by the Deputy Adjudicator implementing the terms of that consent. This was a substantive order recording the substantive decision, and falls within the provisions of Rule 39(2) and (3) in that it cannot be varied or set aside except on appeal.   It is therefore not open to the Respondent to apply to me to set aside or revoke the May 2012 Order.  Therefore in my judgment I am functus and that must be an end to the matter.

DECISION ON COSTS
14.	That being so it now falls upon me to determine the costs issue between the parties. As I have stated above, provision is made in paragraph 2 of both the April 2012 Consent Order, and the May 2012 Order to the effect that the Respondent do pay the costs of the proceedings on the standard basis to be assessed if not agreed, such costs to be paid within fourteen days of the costs officer’s certificate or agreement, whichever is the earlier.  In a letter dated 7th August 2012 Messrs Scott Rowe indicated that the costs could not be agreed with the Respondent.  As a consequence a detailed bill was prepared, and a direction was sought by the Applicant’s solicitors as to the procedure for the assessment of costs in accordance with Rule 42 of the 2003 Rules, as amended.  The Adjudicator responded in a letter dated 13th August 2012 setting out what was required to be done, and he stated that on receipt of a copy of a bill, he would give further directions as to costs.  In a letter from the Respondent and her husband dated 13th August 2012 it was stated that regrettably the parties had not been able to agree on the quantum of costs.  Further, they asserted that as they had sought an order to vary the May 2012 Order all costs should be dealt with after the final adjudication.
15.	In a letter dated 17th August 2012, Messrs Scott Rowe made strong representations in response to the assertion made by the Respondent (and her husband) that there should be a variation of the May 2012 Order.  This response was made on the basis that the Respondent had withdrawn her objection to the Application of her own volition the day before the intended hearing in April 2012, and had signed the April 2012 Consent Order agreeing to pay the Applicant’s costs on that basis.  

16.	An amended detailed bill of costs was provided by Messrs Scott Rowe under cover of a letter dated 16th August 2012. The total bill comprises profit costs of £13,345.72, disbursements of £8,600, and VAT of £4,348.54.  This makes a grand total of £26,294.26. In an email dated 22nd August 2012 the Respondent (and her husband) took issue with a number of the items on the amended bill. It must be said that they do not appear to be challenging the principle of the award of costs, but have directed their attention to the variation or set aside of the May 2012 Order. However, for the reasons stated above, I am unable to do this, and in such circumstances in my judgment the order for costs contained in that Order must stand.

17.	I therefore find that the Respondent is liable to pay the costs of and occasioned by the Application in this case.  However, as there does appear to be some dispute with regard to a number of the items, I order that there be a detailed assessment of the costs to be heard by a Costs Judge in this jurisdiction.

Dated this 17th day of May 2013

By Order of The Adjudicator to HM Land Registry