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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Antoine v Barclays Bank Plc & Ors [2018] EWHC 395 (Ch) (02 March 2018) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2018/395.html Cite as: [2018] EWHC 395 (Ch), [2018] 4 WLR 67, [2018] WLR(D) 172 |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building Fetter Lane London EC4A 1NL |
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B e f o r e :
sitting as a Deputy Judge of the High Cour
____________________
TREVOR ANTHONY ANTOINE (Administrator of the estate of Joseph Antoine deceased) |
Claimant |
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- and – |
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(1) BARCLAYS BANK PLC (2) THE CHIEF LAND REGISTRAR (3) ATHENA ETHEL TAYLOR (As the Personal Representative of George Taylor deceased) |
Defendants |
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And between: |
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ATHENA ETHEL TAYLOR (as Personal Representative of George Taylor deceased) |
Claimant |
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- and – |
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TREVOR ANTHONY ANTOINE (Administrator of the estate of Joseph Antoine deceased) |
Defendant |
____________________
Mr Serugo-Lugo (instructed by Montas Solicitors) for Mrs Taylor
Mr Althaus (instructed by TLT LLP) for Barclays Bank Plc
Ms Yates (instructed by the Government Legal Department) for the Chief Land Registrar
Hearing dates: 20-22 February 2018
____________________
Crown Copyright ©
Miss Joanna Smith QC:
Introduction
The Issues
16.1 Were the Contested Documents forgeries?
17.1 Should Mrs Taylor's claim be dismissed in its entirety, or should she be granted relief in the form of either:
17.1.1 Payment of money by Mr Antoine to reflect unjust enrichment to him arising from the enhancement of the value of the Property resulting from renovation carried out by Mr Taylor (and if so, how much), and/or
17.1.2 Repayment to her from Mr Antoine of the cost of renovating the Property, including the interest on the loan from Barclays to Mr Taylor (and if so, how much)?
17.2 Should Mr Antoine be entitled to compensation from Mrs Taylor:
17.2.1 For the fact that a legal charge was placed on the Property in favour of Barclays (and if so, how much); a nd/or
17.2.2 For use and occupation of the Property (and if so, how much)? In his closing submissions, Mr Umezuruike, acting on behalf of Mr Antoine, in fact abandoned this claim in circumstances where Mr Taylor's estate was worth nothing and it was accepted that Mr Antoine had no prospect of making any recovery. He invited me to make no order on the claim, which I shall do.
17.3 If the Contested Documents were genuine, should there be an order for foreclosure in favour of Mrs Taylor, or should Mr Antoine be allowed to exercise his equitable right of redemption (and if so, on what terms)?
18.1 Was it a "mistake" for the purpose of the LRA Sch. 4 para 2(a) for the Registrar to have entered Mr Taylor as the Registered Proprietor upon service of the July 2007 Order on the Registrar:
18.1.1 At all, because the July 2007 Order was made on the basis of forged documents, or
18.1.2 Without an observation on the register that the entry was made pursuant to the July 2007 Order?
18.2 Was it a "mistake" for the purposes of the LRA Sch. 4 para 2(a) for the Registrar to have entered the Legal Charge in favour of Barclays on the register?
18.3 If the court found that the entry of Mr Taylor on the register was a mistake, but that the entry of the Legal Charge on the register was not a mistake, would it nevertheless have the power to order removal of the Legal Charge on some other basis?
18.4 If the court would otherwise have the power to remove the Legal Charge under Paragraph 2(1)(a), are there exceptional circumstances which would justify its not doing so?
18.5 If the Contested Documents were genuine, should there be an order for Mr Antoine to pay Mrs Taylor damages for loss of rental income and if so how much?
The Witnesses
20.1 Mr Antoine gave evidence on his own behalf in support of four witness statements signed by him on 8 May 2008, 26 June 2008, 31 July 2017 and 15 February 2018. Although (unsurprisingly) he had trouble remembering the precise details of events which occurred a long time ago, Mr Antoine struck me as a credible witness who was doing his best to assist the court and I accept his evidence.
20.2 Barclays relied on the oral evidence of Ms Natasha Heslop, given in support of her witness statement of 31 August 2017. Ms Heslop had no direct knowledge of the events surrounding the making of the loan by Barclays to Mr Taylor but had set out in her statement a helpful explanation of key documents. Owing to her lack of involvement, Ms Heslop was largely unable to address questions of detail in her oral evidence.
20.3 The Registrar relied on the oral evidence of Ms Shah, provided in support of her two witness statements dated 31 January 2018 and 9 February 2018. Ms Shah's oral evidence concentrated largely on the practice and procedures of HMLR and I accept her evidence.
20.4 Mrs Taylor gave evidence on her own behalf in support of her witness statement dated 15 June 2017. Her evidence focussed largely on the state of the Property when Mr Taylor took over possession, the money he spent in renovating the Property and the details surrounding the letting of the Property by Mr Taylor in 2010. I have no reason to doubt that Mrs Taylor was seeking to give truthful evidence albeit that in many instances she had no clear recollection, or did not know the detail, of relevant events. She appears to have been mistaken in her oral evidence when she said that her husband only let out the Property when he was in possession of it. This was contradicted by her witness statement and by a tenancy agreement from 2010.
20.5 Mrs Taylor called Mr Ernest Borland to give oral evidence in support of his witness statements of 13 November 2006 and 15 June 2017. Mr Borland was at a considerable disadvantage in giving his evidence owing to the fact that he was suffering from hearing loss. However, notwithstanding this disability and making every allowance for it, I nevertheless found his evidence to be highly unsatisfactory for reasons I shall return to in detail later.
Experts
21.1 the two Contested Documents with Mr Joseph's signatures "are attempts to simulate his genuine signature" (Dr Giles) and
21.2 "there is strong evidence to support the view that Mr Joseph did not sign the disputed Consent Document dated 29th July 1987 or the Leasehold Documents dated 3rd September 1987" (Mr Coslett),
the parties did not seek to rely on their oral evidence at trial or to test that evidence by cross-examination. As I have already indicated, Mr Antoine, Barclays and the Registrar all accept that the Contested Documents are not genuine. Only Mrs Taylor maintains that the experts are wrong.
The Registration and Conveyancing History of the Property
29.1 On 29 July 1987 Mr Joseph signed a document ("the Contested Notice Document") by which he confirmed that he had been notified by the (unnamed) leaseholder of the Property of the latter's intended transfer of the leasehold title to Mr Taylor "to take effect in the year 2001 under agreement to be dated 30-7-1987". Given that from September 1964 Mr Joseph had himself been the proprietor of the leasehold title, this document appears on its face to be peculiar, at best.
29.2 On 30 July 1987 Mr Benjamin signed a document ("the Contested Leasehold Document") by which he purported to "cede" the leasehold title to Mr Taylor "to take effect in the year 2001 ", in consideration for the receipt of payments from Mr Taylor via Helen Pisani ("Ms Pisani") (Mr Taylor's sister, now deceased) totalling £23,000 between the years 1983 and 1987. However, Mr Benjamin was not in a position to cede the leasehold title to Mr Taylor as he had already transferred it to Mr Joseph in September 1964.
29.3 On 3 September 1987 Mr Joseph signed a document ("the Contested Freehold Document") by which he confirmed receipt of a loan of £11,000 from Mr Taylor (again via Ms Pisani) and promised that, if the loan was not repaid with interest by November 2004, Mr Taylor would be "at liberty to consider me being in default and accordingly becomes the Freeholder of [the Property]".
Discussion of the Issues
Issues common to both the 2006 and 2016 Claims:
Were the Contested Documents forgeries?
"…there is no dispute that the approach I should adopt…is first to assess the lay evidence and then see whether or not the handwriting evidence supports the view I have formed of the lay evidence: Supple v Pender [2007] WTLR 1461. As to the standard of proof, there was agreement between the parties that the relevant approach was that set out in Re H [1996] AC 536, where Lord Nicholls said this (at pp 586-7):
'the balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence…Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event in itself is a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established…This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters'."
70.1 Mr Borland says that he had known Mr Taylor since about 1953 and that he had also known Mr Taylor's sister, Ms Pisani for a long time. In 1987 Ms Pisani was doing business from a shop in Portobello Road. Mr Borland had known Mr Joseph from the 1970s on a social basis, they regularly played dominoes together at various London pubs and they also used to play cricket together in Harlesden.
70.2 In about 1983, Ms Pisani told Mr Borland that she regularly received money from Mr Taylor, who was then in the Merchant Navy, for safekeeping. She said that she was looking to invest some of that money. Mr Borland says that Mr Joseph had told him that Mr Benjamin was looking for a loan. He arranged a meeting between Mr Joseph, Mr Benjamin and Ms Pisani at the Property in the summer of 1983 at which the possibility of Ms Pisani lending money in cash to Mr Benjamin was raised. Thereafter various sums were loaned to Mr Benjamin by Ms Pisani.
70.3 In July 1987, Mr Borland negotiated an agreement between Mr Benjamin, Mr Joseph and Ms Pisani that in consideration of the monies lent to Mr Benjamin (then totalling £23,000 ), Mr Benjamin would transfer the leasehold title in the Property to Mr Taylor, such transfer to take effect in the year 2001. Mr Joseph gave his consent to this transfer. Mr Borland says he saw a copy of the Land Registry title at the time showing both freehold and leasehold title and that, on the basis of this, he thought that Mr Benjamin owned the leasehold interest. During his cross-examination by Mr Umezuruike, acting on behalf of Mr Antoine, Mr Borland asserted that Mr Joseph had confirmed that Mr Benjamin was the leaseholder.
70.4 Mr Borland wrote out the Contested Leasehold Document dated 30 July 1987 and the Contested Notice Document from Mr Joseph dated 29 July 1987 and they were signed and witnessed. Mr Taylor did not know of these arrangements.
70.5 In early August 1987, Mr Joseph asked Mr Borland if he knew of someone who would be willing to lend him £11,000. Mr Borland approached Ms Pisani who agreed to lend the money on the basis of an agreement as to repayment of the principal loan and interest by November 2004, failing which Mr Taylor would be at liberty to consider Mr Joseph as being in default, in which case Mr Taylor would become the freehold owner of the Property. In his oral evidence, Mr Borland confirmed that he prepared the Contested Freehold Document dated 3 September 1987 and was present in Ms Pisani's shop, together with Mr Benjamin, when it was signed by Mr Joseph. He said that Ms Pisani handed over £11,000 (the equivalent today of something in the region of £30,000) to Mr Joseph in cash.
70.6 The dates of 2001 and 2004 for repayment of the loans were to roughly coincide with a likely date for Mr Taylor's retirement
70.7 Following the signing of the Contested Documents (which Mr Borland says were not copied for Mr Joseph), Ms Pisani gave them to Mr Borland for safe-keeping. Ms Pisani died in early 1988 and therea fter he had continued to see Mr Taylor on a regular basis. He lost contact with Mr Joseph and had not seen him since the 1980s.
70.8 Mr Borland did not mention in his statement, but maintained in his oral evidence for the first time, that in 2004 Mr Taylor was staying in a room at his (Mr Borland's) address at 29 Ewelme Road as a paying guest. However, Mr Borland said that he had not then told Mr Taylor about the existence of the Contested Documents because he had forgotten about them. In his statement he records that he only discovered the Contested Documents in about early 2005.
70.9 Mr Borland expresses the view that Mr Joseph is a person of questionable probity and suggests that any simulation of Mr Joseph's signature might be by Mr Joseph himself. Mr Serugo-Lugo did not suggest to Mr Antoine in cross-examination that his father was of questionable probity and I have seen no other evidence to that effect. I reject any such suggestion.
71.1 Mr Antoine was not present at the 1987 Transaction but it is his evidence that the signature on the Contested Freehold Document is not his father 's signature and that he immediately identified that when he first saw the document. It is also his evidence (by reference to examples of documents on which Mr Joseph's genuine signature appears) that he believes the signature on the Contested Notice Document to have been crudely forged. It was not suggested to him that he might be mistaken about this.
71.2 Mr Antoine lived with Mr Joseph at the Property between 1964 and 1993 and says he was close to his father and knew him well. He says that his father had no interest in cricket and that he never heard of him playing dominoes. This evidence was not challenged. Mr Antoine says that he never heard the names Mr Borland, Ms Pisani, Mr Taylor or Joseph Williams (the witness to the Contested Documents).
71.3 In January 1984, Mrs Joseph died leaving to her husband savings of£14,391 and no debts. By January 1987, Mr Joseph had finished paying off mortgages on the Property. He was careful with his money and he saved and invested his earnings. He discussed his sa vings and investments with Mr Antoine who says that he can think of no reason why his father would suddenly have needed to borrow £11,000 in 1987 and, in the process, jeopardise his home. As at the date of his death in February 1996 he had assets worth £37,046 in the UK which included shares valued at £20,072 and money at the bank of over £14,000; the Property was valued at £140,000. The estate had debts of £3,843.97 which included funeral expenses, utility bills and a small reimbursement of overpaid pens ion. Mr Antoine's clear evidence is that Mr Joseph was never short of money and never borrowed money from anyone. Mr Antoine was asked briefly about this in cross-examination by Mr Serugo-Lugo, who suggested that Mr Joseph obviously knew about the 1987 Transaction. Mr Antoine replied "He wouldn't have known about any loan as he didn't have one". There is no documentary evidence other than the Contested Documents to support the proposition that Mr Joseph was short of money.
71.4 When Mr Antoine went through Mr Joseph's personal papers and documents following his death he found them to be in proper order. He did not find any document suggesting that his father had outstanding debts and he did not find copies of the Contested Documents (although given Mr Borland's evidence that copies of the Contested Documents were not made, this is perhaps unsurprising).
78.1 First, the Contested Notice Document purports to be a confirmation by Mr Joseph that he has "been notified by the Leaseholder of the Property of the transfer of his interest to Mr George Taylor to take effect in the year 2001. However, Mr Joseph was the leaseholder and I can see no reason why he would have signed such a document.
78.2 Second, Mr Umezuruike suggested in cross-examination of Mr Borland that it is a remarkable coincidence that the date for repayment of the loan on the Contested Freehold Document is November 2004, given that Mr Taylor was apparently residing at Mr Borland's Property in 2004. He suggested that the Contested Freehold Document was created at that time and not in 1987. I do not need to decide that he is right about that, just as I do not need to decide who was involved in forging Mr Joseph's signature on the Contested Documents, but I agree with him that in all the circumstances this does appear suspicious.
79.1 First that Dr Giles had access to Mr Joseph's diary amongst the various documents available to her (referred to in her report as a "Notebook") but that she did not comment on it. Mr Serugo-Lugo suggests that this diary must have been signed every day by Mr Joseph (a point which he did not put to Mr Antoine) and that Dr Giles should have compared the signatures in the diary with the disputed signatures on the Contested Documents. I reject this criticism. Dr Giles had access to eleven other documents bearing undisputed signatures listed on page 5 of her report. Further and in any event, she says in terms on page 6 of her report that "The Notebook…contains no relevant signatures and I have not examined this document further". Dr Giles is a well-known and highly respected handwriting expert and although Mr Serugo- Lugo invited me to accept that Dr Giles was wrong in saying that the Notebook contained no relevant signatures, I am not prepared to make such a finding. As I have already said, all parties (including Mrs Taylor) agreed that there should be no cross-examination of the experts.
79.2 Second that although Dr Giles had access to the originals of the various documents referred to in her report, Mr Cosslett (instructed on behalf of Mrs Taylor) only ever saw copies. It is for this reason that he says in the joint statement that his conclusions are more restricted than those arrived at by Dr Giles. Again, I reject this criticism. An application was made to the court at the PTR for the originals of the relevant documents to be provided to Mrs Taylor's legal team and this application was refused, apparently (as I was told by Miss Yates) because none of the other parties had the originals in their custody or control. Even without access to the original documents, it was still Mr Cosslett's opinion that there was "strong evidence" to support the view that Mr Joseph did not sign the Contested Notice Document and the Contested Leasehold Document.
Issues particular to the 2006 Claim
Should Mrs Taylor's claim be dismissed in its entirety, or should she be granted relief sought in her Re-Amended Particulars of Claim to reflect unjust enrichment to Mr Antoine or to compensate her for the cost of renovating the Property?
81.1 Any increase in the value of the P roperty by the renovation is not unjust as Mr Antoine did not encourage it;
81.2 It will be extremely difficult, if not impossible, to determine in 2018 to what extent the renovation of the Property in fact increased its value in 2008. Further, that the evidence of the renovations and their cost is unreliable;
81.3 By his actions, Mr Taylor forced Mr Antoine to spend a considerable amount of money in taking action to remove the registration of Mr Taylor as proprietor of the Property from the register; and
81.4 Any sum of money that is adjudged to be payable to Mrs Taylor will vest in Barclays under the doctrine of subrogation. Mr Althaus submitted, and I accept, that this final point is erroneous.
Issues particular to the 2016 Claim
Was it a "mistake" for the purpose of LRA Sch. 4 para 2(a) for the Registrar to have entered Mr Taylor as the Registered Proprietor upon service of the July 2007 Order on the Registrar either (i) because the July 2007 Order was made on the basis of forged documents, or (ii) without an observation on the register that the entry was made pursuant to the July 2007 Order?
The Land Registration Act 2002
may make an order for alteration of the register for the purpose of –
(a) correcting a mistake,
(b) bringing the register up to date, or
(c) giving effect to any estate, right or interest excepted from the effect of registration.
Although Mr Antoine originally sought to rely on sub-para (b) above, he now relies solely on sub-para (a) in support of his contention that the register should be altered to remove the Legal Charge.
(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor.
(1) This paragraph applies to the power under paragraph 2, so far as relating to rectification.
(2) If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor's consent in relation to land in his possession unless -
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so.
(4) In sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land.
The meaning of "mistake" for the purpose of LRA Schedule 4
"[T]here will be a mistake whenever the registrar (i) makes an entry in the register that he would not have made; (ii) makes an entry in the register that he would not have made in the form in which it was made; (iii) fails to make an entry in the register which he would otherwise have made; or (iv) deletes an entry which he would not have deleted; had he known the true state of affairs at the time of the entry or deletion. The mistake may consist of a mistaken entry in the register or the mistaken omission of an entry which should have been made. Whether an entry in the register is mistaken depends upon its effect at the time of registration …"
107.1 Notwithstanding that there has over the years been a degree of controversy on the point, there is a "principled and correct " distinction to be made between a void and a voidable disposition. Thus "an entry made in the register of an interest acquired under a void disposition should not have been made and the registrar would not have made it had the true facts been known at the time. By contrast, a change made to the register to reflect a transaction which is merely voidable is correct at the time it is made" [53].
107.2 Accordingly, "…the registration of a voidable disposition…is not a mistake for the purposes of Schedule 4 to the LRA 2002. Such a voidable disposition is valid until it is rescinded and the entry in the register of such a disposition before it is rescinded cannot properly be characterised as a mistake. It may be the case that the disposition was made by mistake but that does not render its entry on the register a mistake, and it is entries on the register with which Schedule 4 is concerned. Nor, so it seems to me, can such an entry become a mistake if the disposition is at some later date avoided. Were it otherwise, the policy of the LRA 2002 that the register should be a complete and accurate statement of the position at any given time would be undermined. In this connection, I believe the authors of Ruoff & Roper, Registered Conveyancing put it very well at para 46.009: "An entry cannot retroactively become a mistake. It cannot be argued therefore that the rescission of a voidable transaction retroactively makes the entry which recorded the disposition – being an entry made at the time while the disposition was still effective – a mistake. That would undermine the policy of the 2002 Act that the register should be a complete statement of title at any given time. Consequent upon such rescission, application may be made for an order for alteration of the register to reflect rescission. This would, however, be an alteration for the purposes of bringing the register up to date…rather than for the purposes of correcting a mistake".
The Effect of Court Orders
111.1 "It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void" (Hadkinson v Hadkinson [1952] P 285 (CA), at 288, per Romer LJ);
111.2 "[A]n order made by a court of unlimited jurisdiction... must be obeyed unless or until it has been set aside by an order of the court" (Isaacs v Robertson [1987] AC 97 (PC), at 101, per Lord Diplock). I note in passing that Lord Diplock expressed the view in this case at 102-103 that in relation to orders of the court of unlimited jurisdiction it is "misleading to seek to draw distinctions between orders that are void in the sense that they can be ignored with impunity by those persons to whom they are addressed and orders that are voidable and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions void and voidable respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v Marsh [1945] AC 271, 284 and MacFoy v United Africa Co Ltd [1962] AC 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside" ;
111.3 "[A]n order is either irregular or regular. If it is irregular it can be set aside by the court that made in upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies" (Isaacs v Robertson, at 103, per Lord Diplock);
111.4 If a court order is made on the basis of a mistake, it is not a nullity. Rather, "a document emanating from the court and good on its face... must be acted upon until declared void by the court" (Firman v Ellis [1978] 1 QB 886 (CA), at 914E – H, per Ormerod LJ, with whom Geoffrey Lane LJ agreed at 917B);
111.5 Where the irregularity in the order is such as to undermine the whole proceedings, the order is only referred to as "void" in the sense of the Court, on an application, having no option but to set it aside: "In such cases, the applicant is entitled ex debito justitiae to have the order set aside, but it is not accurate to say that the order is a nullity, because it is good on its face and valid until set aside" (In re F (Infants) (Adoption Order: Validity) [1977] Fam 165 (CA), at 171B – D, per Ormerod LJ, giving the judgment of the Court).
111.6 The fact that an order is to be treated as valid until set aside is a "very important and salutary principle which plays a significant role in the enforcement of orders" (Raiffeisenlandesbank Oberosterreich AG v Meyden [2016] EWHC 414 (Ch) at 35).
Discussion
"On being set aside [the order] is thereupon shown to have been a nullity from the beginning and void. So, after some vacillation, I would adopt the meanings of "void" and "voidable" given by Professor Wade in his Administrative Law, 4th ed. (1977). Pp. 300, 450. Seeing that it was a nullity, it follows that in point of law no action had been "commenced"…The Act of 1975 operates retrospectively so as to enable Mr Pheasant to bring an action against the Smiths…"
Mr Umezuruike argues that this judgment supports his analysis of the status of the July 2007 Order.
116.1 The Contested Documents had no dispositive effect in themselves; this is not a case in which a forged transfer has been registe red. Indeed, although the Contested Documents had been provided to HMLR at an earlier date, they were not provided to HMLR at the time of the AP1 application for transfer of the freehold and leasehold title in the Property to Mr Taylor. That application was made solely on the basis of the July 2007 Order. Without a court order the Registrar could not have made any entry in the register. The Contested Freehold Document was at best an equitable charge which required the intervention of the court to declare that Mr Taylor was entitled by virtue of that document to be the legal mortgagee and then to make a foreclosure order in default of which he was deemed to acquire freeholder rights. The Contested Leasehold Document was nothing more than a contract to transfer the lease. If it had been presented to the Registrar without a Court Order, he would not have made any entry in the register, not only because it was just a contract, but also because the purported leaseholder, Mr Benjamin, was not in fact the registered leaseholder. It required the intervention of the court to order specific performance of the contract and then to make a vesting order.
116.2 The July 2007 Order effected the disposition of title ; it conferred title on Mr Taylor independently of the Contested Documents.
116.3 At the time it was made, the July 2007 Order was valid and effective, albeit susceptible to being set aside by a further order of the Court. It had to be complied with unless and until it was set aside.
116.4 The reasoning of Lord Denning MR in Firman v Ellis was not the reasoning of the majority of the Court of Appeal (albeit that there was no disagreement as to the outcome). Geoffrey Lane LJ agreed with the reasoning and conclusions of Ormerod LJ at page 917, which reasoning was different from that of Lord Denning MR. Importantly, it was not Ormerod LJ's view that the order in that case was a nullity simply because it had subsequently been set aside. Further, albeit that Firman v Ellis was not cited to the Privy Council in Isaacs v Robertson it is plain that their Lordships in the latter case would not have agreed with the approach adopted by Lord Denning MR, which is also not consistent with the statements of principle in the other cases referred to in para 111 above. I reject Mr Umezuruike's submission that the terms "void" and "voidable", when used to describe an order of the court are to be viewed in the context of the facts of the relevant case and that whilst there is no question in this case that the July 2007 Order had to be obeyed, it was nevertheless "a nullity". I do not believe this is a finding that I can properly make in light of the clear statements of principle to contrary effect.
116.5 I accept the submissions made on behalf of the Registrar and Barclays that whether or not it is right as a matter of terminology to refer to a court order as being "voidable", the July 2007 Order was certainly akin to a voidable transaction for the purposes of the analysis of whether it amounts to a mistake under LRA Schedule 4, para 2(1)(a). I accept that the NRAM principles as to the distinction between void and voidable transactions thus apply either directly, or by analogy, in this new factual context.
116.6 In my judgment, Mr Umezuruike's argument that section 9 LPA assists him is misconceived. That provision is designed to ensure that a vesting order (amongst other things) will operate without more as a conveyance by an estate owner. It cannot, in my judgment, be interpreted as supporting the proposition that a Court Order obtained by fra ud is void.
116.7 When the application was made to the Registrar by reference to the July 2007 Order, he had only to satisfy himself that the order had been made and that a copy of the order had been enclosed with the application (Rule 161). It was not for him to seek to explore the validity of the order. That would have been outside his statutory powers
116.8 In determining whether a mistake has been made, it is clear from the decision in NRAM, that one can only have regard to the position at the point in time that the entry was made on the register. As I have already made clear, at that time, the July 2007 Order was good on its face. The fact that the July 2008 Order set aside the July 2007 Order and that the register was subsequently updated to reflect the J uly 2008 Order did not have retrospective effect in the sense that it did not retrospectively mean that the original registration of the July 2007 Order was a mistake.
116.9 Accordingly, the registration of Mr Taylor as proprietor on the basis of the July 2007 Order was not a mistake at the time, or at all.
116.10 There is a wide point of public policy and principle here. If the registration of title pursuant to a Court Order, valid on its face at the time of registration, could be impugned as a mistake, the statutory provisions I have set out above and the policy of the LRA as to the conclusiveness of registration might well be undermined. Indeed there might even be broader implications for the inviolable status of court orders.
116.11 Although I am very conscious that the outcome of my judgment will inevitably be detrimental to Mr Antoine, who is, in effect, the victim of this fraud, and while I have every sympathy with his plight, I do not feel that I can allow that to influence my application of the law.
Was it a "mistake" for the purposes of LRA 2002 Sch. 4 para 2(a) for the Registrar to have entered the Legal Charge in favo ur of Barclays on the register?
121.1 As registered proprietor of the freehold title, Mr Taylor was entitled to exercise owner's powers in relation to it pursuant to LRA section 24.
121.2 These powers included the power to charge the freehold at law with the payment of money (LRA, section 23(1)(b)).
121.3 In granting the Legal Charge, Mr Taylor was exercising that power.
121.4 Furthermore, section 26(3) of LRA precludes the title of a disponee under owner's powers being questioned on the basis that some limitation would otherwise affect the validity of the disposition.
121.5 It cannot therefore be said that the creation of the Legal Charge was invalid, nor that its entry on the register was a "mistake" for the purposes of Schedule 4, para 2(1)(a).
121.6 Accordingly, the Legal Charge is valid and binds the freehold title. Any right or equity that Mr Antoine had to apply to set aside the July 2007 Order was unprotected on the register at the time when the Legal Charge was registered and therefore the Legal Charge takes priority over it pursuant to section 29 LRA.
If the court found that the entry of Mr Taylor on the register was a mistake, but that the entry of the Legal Charge on the register was not a mistake, would it nevertheless have the po wer to order removal of the Legal Charge on some other basis?
If the court would otherwise have the power to remove the Legal Charge under Schedule 4, paragraph 2(1)(a), are there exceptional circumstances which would justify its not doing so?
132.1 The court must ask itself two questions: (1) Are there exceptional circumstances in this case? and (2) do those exceptional circumstances justify not making the alteration?
132.2 The first of these questions requires one to know what is meant by "exceptional circumstances" and then to establish whether such circumstances exist as a matter of fact.
132.3 "Exceptional" is an ordinary, familiar English adjective. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual or special, or uncommon; to be exceptional a circumstance need not be unique or unprecedented, or very rare but it cannot be one that is regularly, or routinely, or normally encountered. Further the search is not for exceptional circumstances in the abstract but those which have a bearing on the ultimate question whether such circumstances justify not rectifying the register.
Conclusion