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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kingsalton Ltd & Anor v Thames Water Developments Ltd & Ors  EWCA Civ 20 (19 January 2001)
Cite as:  1 P & CR 15,  5 EGCS 169,  NPC 16,  EWCA Civ 20
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Mr. David Mackie Q.C.
Strand, London, WC2A 2LL
Friday 19th January 2001
B e f o r e :
LADY JUSTICE ARDEN
SIR CHRISTOPHER SLADE
| KINGSALTON LTD. AND ANOTHER
|- and -
|THAMES WATER DEVELOPMENTS LTD. AND OTHERS
of Birmingham for the Respondents)
Mr. Kim Lewison Q.C. and Mr. Timothy Fancourt (instructed by Messrs Ashurst Morris Crisp
of London for the Appellants)
Crown Copyright ©
LORD JUSTICE PETER GIBSON:
"The facts are very different here but the process identified in Epps remains valid. The ownership of the [disputed land] was an issue the importance of which no-one was aware of until the early 1990s. It was in a sense the fault of Kingsalton's predecessors in title that there was a lack of precision about the identity of this boundary but it was never foreseen to be a matter of much significance. The Defendants are not the first proprietors, the Mayhews were. But they are less free from responsibility than other successors to registered title because they were involved with and initiated the first registration to resolve what they saw would otherwise be a doubt. The registration depended on limited examination of old plans and a mistaken recollection by Mr. Mayhew which was not closely tested at the time. This was a step with which the Defendants were closely associated."
"The Defendants are in a sense in possession of the disputed area but in a way different from that which the statute must have contemplated when considering it just to give additional protection to those in possession. It seems to me I can look at the matter equally well in one of two ways. If there is no possession then I consider the matter within Section 82(1) but bear in mind the nature of the occupation secured by the Defendants. If there is possession within Section 82(3) I have to apply that sub-section but have regard to the limited and questionable nature of the possession and the fact that it was secured by works carried out wrongly but in good faith to force an issue. However I look at it the need for rectification is clear. It seems to me unjust not to order rectification, in the circumstances which I have described in the judgment, when registration was obtained quite recently, at the behest of the Defendants to resolve a doubt and only secured because the evidence which I have had the benefit of considering was not available to the Land Registry. In my judgment notwithstanding the fact that the Defendants may arguably be in possession of the property I believe that it would be unjust not to rectify the register against them to give effect to what I have found the true boundary between the parties' land to be."
The Deputy Judge therefore ordered rectification of title numbers HP 122511, HP 500177 and HP 494357 to give effect to his declaration and the amendment of those titles, where they abut each other, in accordance with his declaration.
S. 82(1) provides (so far as material):"The register may be rectified pursuant to an order of the court or by the registrar, subject to an appeal to the court, in any of the following cases, but subject to the provisions of this section:-(a) Subject to any express provisions of this Act to the contrary, where a court of competent jurisdiction has decided that any person is entitled to any estate right or interest in or to any registered land or charge, and as a consequence of such decision such court is of opinion that a rectification of the register is required, and makes an order to that effect;....(g) Where a legal estate has been registered in the name of a person who if the land had not been registered would not have been the estate owner ...."
"The Register shall not be rectified, except for the purpose of giving effect to an overriding interest [or an order of the court], so as to affect the title of the proprietor who is in possession -(a) [unless the proprietor has caused or substantially contributed to the error or omission by fraud or lack of proper care; or](b) [...](c) unless for any other reason, in any particular case, it is considered that it would be unjust not to rectify the register against him."
(What is contained between the square brackets reflects the amendments made by s. 24.)
"Where an indemnity is paid in respect of the loss of an estate or interest in or charge on land, the amount so paid shall not exceed -(a) where the register is not rectified, the value of the estate, interest or charge at the time when the error or omission which caused the loss was made;(b) where the register is rectified, the value (if there had been no rectification) of the estate, interest or charge, immediately before the time of rectification."
(1) The Deputy Judge has found where the true boundary lies and rectification would give effect to that finding.
(2) The First Defendant's predecessors, the Mayhews, were aware that there were doubts as to the boundary; the First Defendant took a commercial risk, knowing Kingsalton's claim to part of the disputed land, when acquiring the disputed land and proceeding with the roadworks.
(3) Kingsalton, through the evidence of its director, Mr. Froud, is genuinely concerned about the integrity of the factory and the possible damage to the factory from vehicles passing by very close to the wall of the factory at its south west corner particularly with its foundations protruding from the line of the wall; the potential damage could affect the factory's letting value, and there could be interruption to the business carried on in the factory.
(4) The refusal of rectification would leave Kingsalton to claim indemnity only on the basis of the value of the estate or interest at the time when the error or omission which caused the loss was made, not the current value.
(1) The policy of the 1925 Act favours registered proprietors in possession being left with their title undisturbed.
(2) Kingsalton had acquired its land at a time when it was registered land with its southern boundary shown on the filed plan as ending with the southern wall of the factory.
(3) The Mayhews had without objection duly obtained registration of the disputed land to resolve doubts and the First Defendant paid a substantial sum to acquire it.
(4) The works carried out by the Defendants were, as the Deputy Judge found, done in good faith.
(5) If rectification is ordered, the development land will lack a proper access road and may not be developed; that is likely to cause substantial loss to the First Defendant, which could not recover that loss under s. 83.
"If the appeal is allowed and the order below for rectification of the Register set aside, the Appellant will undertake to the Court that if the proposed access road is to be constructed on the disputed land (namely the strip between the blue line and the wall of the Respondent's building) then, subject to the Respondent reasonably co-operating with the Appellant in that regard, the Appellant -
1. will not carry out works of construction to the proposed access road except in accordance with the planning consent and any requirements of the highway authority;
2. subject to 1 above, will design and construct the access road and associated highway works to a technical specification which will avoid any risk of damage to the Respondent's building caused by the construction and by subsequent use of the road in the manner for which it was designed."
"In cases within paragraphs (a) and (b) but not within paragraphs (d) to (h) [of section 82(1)], e.g. cases in which voidable transactions are set aside and, as a consequence, rectification of the register is required, it is difficult to construct any scenario in which rectification could be withheld."
Sir Christopher Slade:
"My learned friend in opening this case to your Lordship told your Lordship that he was not going to ask for anything other than nominal damages. In those circumstances I cannot possibly find any relevant material for re-examination. I have no questions in re-examination."
"Mr Elvin referred to Article 1 of the First Protocol to the Convention...."
"But I do not see why this court need go beyond noting the fact that whichever way the discretion is exercised, the compensation under the indemnity is reasonably related to the value of the property. That is not a breach of Article 1."
"The Court" [that is the court is Strasbourg] "has frequently stated the principle that without losing sight of the general context of the case it must in proceedings originating in an individual application invite its attention as far as possible to the concrete case."
"The court must therefore ... direct its attention primarily to the contested legislation itself in order to determine whether that legislation is compatible with Article 1 of the First Protocol."
"This is confirmed by section 82(3), which requires a person seeking rectification against a registered proprietor in possession to show not simply that it is to rectify (the normal hurdle in section 82(1)) but the higher hurdle that it would be unjust not to rectify."