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||Neutral Citation Number:  EWCA Civ 1396
||Case No: A3/2008/0120(B)
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Terence Mowschenson QC
Claim No HC07CO2121
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MASTER OF THE ROLLS
LORD JUSTICE PATTEN
LADY JUSTICE BLACK
|| TREVOR GUY
||- and -
||BARCLAYS BANK PLC
Nicholas Stewart QC, William Evans and Russell Stone (instructed by Bridgehouse Partners LLP) for the Appellant
Christopher Nugee QC and Julian Greenhill (instructed by Linklaters LLP) for the Respondent
Hearing date: 22nd November 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Master of the Rolls:
- By this application, Mr Trevor Guy ("Mr Guy") invokes CPR 52.17 (often known as the Taylor v Lawrence jurisdiction) in order to seek a reconsideration of the refusal of Carnwath and Lloyd LJJ to grant him permission to appeal a decision of Mr Terence Mowschenson QC (sitting as Deputy Judge of the Chancery Division) granting summary judgment under CPR 24, against him in favour of Barclays Bank PLC ("the Bank").
- The basic facts are as follows. By 2003, Mr Guy had acquired the freehold title to some 19 hectares of land in Manchester ("the Land"), which was registered at HM Land Registry ("the Registry") under four titles, and he accordingly became the registered proprietor under all four titles. Pursuant to a transfer ("the Transfer") dated 22 June 2004, the Land was purportedly transferred to Ten Acre Ltd ("TAL"), who were duly registered as proprietors in place of Mr Guy on 30 July 2004.
- On 8 March 2005, TAL executed a charge ("the Charge") over the Land in favour of the Bank to secure all moneys owing to the Bank by Lexi Holdings plc ("Lexi"), a company effectively owned and run by a Mr Shaid Luqman, who, it subsequently transpired, was dishonest in a major way. The Bank was registered as proprietor of the Charge on 23 March 2005.
- On 5 October 2006, the Bank demanded repayment from Lexi of over £100m, which Lexi failed to pay. Lexi then went into administration, and, with the consent of the administrators, the Bank put the Land on the market.
- In 2005, Mr Guy had entered notices against the registered titles to the Land, and the Bank began proceedings to clear those notices off in order to effect its intended sale. Mr Guy's defence was that the Transfer, although executed by him and witnessed by his solicitor, was exchanged and completed without his authority, and was therefore void.
- The Bank applied for summary judgment, on the ground that, even if Mr Guy's case was entirely accurate on the facts (which was not accepted), he should still lose, as the Bank had been validly registered as proprietor of the Charge at the Registry and was therefore free to exercise its powers of sale as a registered chargee. The application came before Mr Mowschenson QC, on a hearing at which the Bank was represented by counsel and Mr Guy appeared in person. In a judgment given on 16 January 2008, Mr Mowschenson granted the Bank's application. He refused Mr Guy's application for permission to appeal to this court, on the ground that "[t]he law is clear."
- Mr Guy then applied to this court for permission to appeal. Lloyd LJ considered his application and refused it on paper. In his written decision of 14 February 2008, he said that "[t]he judge's conclusions as to the effect of the Land Registration Act 2002 seem to me to be plainly correct", and that he saw "no arguable basis on which it could be said that the charge to the bank could or should be set aside." Pursuant to his right to do so under CPR 52.3(4), Mr Guy renewed his application to appeal, and his renewed application came on for hearing before Carnwath and Lloyd LJJ on 9 April 2008.
- At that hearing, Mr Guy appeared in person, but he was assisted by a barrister, who was presumably responsible for the written skeleton argument which set out his case, and a copy of which has been provided to us. The hearing resulted in what was, for a renewed application for permission to appeal, a pretty detailed and full judgment, which was given by Lloyd LJ, and with which Carnwath LJ agreed see  EWCA Civ 452. For the reasons given in that judgment, Mr Guy's application for permission to appeal was refused. At least on the face of it, Mr Guy had exhausted his rights of appeal: refusal of permission to appeal to this court at a hearing under CPR 52.3(4), following a refusal on paper, is effectively the end of the road for a would-be appellant.
- However, a little more than a year later, on 20 May 2009, Mr Guy issued the present application by which he seeks to reopen the question of whether he should be permitted to appeal Mr Mowschenson's decision. The application was considered by Lloyd LJ, who refused it on paper, and ordered that, if Mr Guy renewed the application, it should be heard by three members of this court. Mr Guy did renew his application, and it is that which now comes before us.
- In support of his application, Mr Guy initially appeared to be relying on evidence which had come to light since April 2008, and which, he suggested, indicated that the Bank should have appreciated that TAL was not, or may not have been, entitled to be the registered proprietor of the land. However, that contention was realistically not pursued before us by Mr Nicholas Stewart QC, who appeared with Mr William Evans and Mr Russell Stone for Mr Guy.
- The case for Mr Guy ultimately rests on the proposition that Carnwath and Lloyd LJJ were plainly wrong to refuse permission to appeal on 9 April 2008, and that we ought to revisit that issue and grant him permission.
- The skeleton arguments for both Mr Guy and the Bank not only went into the issue whether we could or should permit him to renew his application for permission to appeal, but also discussed in detail the merits of that projected appeal. In agreement with Mr Christopher Nugee QC, who appeared with Mr Julian Greenhill for the Bank, we took the view that it would be inappropriate to consider the application and the projected appeal together. Particularly given the Bank's realistic concession that, if we permitted Mr Guy to renew his application, it should be granted, it seemed to us clear that we should first consider and determine the application to reopen the issue of permission to appeal, and only if we granted it, should we go on to consider and determine the substantive appeal. To consider the substantive issue before we had decided the logically anterior procedural issue would have been wrong in principle, and wasteful of the parties' costs and of court time.
- Having read and heard the parties' clearly expressed arguments on this procedural issue, we concluded that we should reserve judgment, as the issue is not without significance.
- In order to understand the arguments advanced on behalf of Mr Guy, it is necessary to explain briefly the relevant law relating to the substantive issue which Mr Guy wishes to raise on his projected appeal. As the Bank's application for judgment was under CPR 24, the facts were assumed to be as Mr Guy contended, and, at least before Carnwath and Lloyd LJJ, it was accepted that, on this basis, the purported transfer to TAL was void (although Mr Nugee has made it clear on behalf of the Bank that, if this application succeeds, and the judgment of Mr Mowschenson is set aside, Mr Guy's case on the facts is likely to be challenged).
- Even assuming that the Transfer was void, the Bank's case is and was that, as the Charge was nonetheless a valid and genuine charge executed by the registered proprietor of the land, TAL, to secure monies owing to the Bank, and as the Charge was duly registered by the Bank, the Bank's rights as a registered chargee are unassailable by Mr Guy.
- There is no doubt that, under the provisions of the Land Registration Act 2002, registration is normally conclusive in the sense of irrebuttably establishing title (see e.g. sections 23 to 26 and 58). However, paragraph 2(1)(a) of schedule 4 to the Act enables the court to "make an order for alteration of the register for the purpose of
correcting a mistake." The central issue is, therefore, whether Mr Guy could get the registration of the Bank as chargee in the charges register relating to the Land removed under the provisions of this paragraph.
- This issue can fairly be said to turn on whether the concept of "correcting a mistake" is given a wide or a narrow meaning. As to that, Lloyd LJ said this in his judgment on 9 April 2008, at  EWCA Civ 452, para 19:
"I can see that he could well arguably show that the registration of the [T]ransfer was a mistake, especially if the [T]ransfer was the product of a forgery, because the registration of something that was not properly executed on the part of the registered proprietor must be a mistake. There is no question of that kind as regards the Charge. It was properly executed by [TAL]. It is in proper form and there is nothing intrinsically wrong with it. What is wrong with it, according to Mr Guy, is that [TAL] did not have a good title to the Land itself. Its title was subject to rectification on the part of Mr Guy. Mr Guy acknowledges that, if his solicitors had acted with sufficient diligence and promptness, he could have entered or lodged at the Registry a unilateral notice, the equivalent to what used to be called a caution, which would have protected him. In fact he did instruct solicitors to do that but they got there only the day after the registration of the
Charge. So he lost any priority in that respect. No doubt other proceedings may arise from that but that is not the concern of these proceedings."
- Four paragraphs later, Lloyd LJ said this:
"[I]t seems to me that it is necessary to grasp the nettle of what is meant by 'mistake'. In that respect, while the scope of the phrase 'correcting a mistake' is no doubt something that requires to be explored and discussed and developed in the course of future litigation, which will be decided upon the facts and upon the merits of each case, I cannot see that it is arguable that the registration of the charge can be said to have been a mistake, or the result of a mistake, unless at the least Mr Guy can go so far as to show that the Bank, the mortgagee, had either actual notice, or what amounts to the same, what is referred to as 'Nelsonian' or 'blind eye notice', of the defect in the title of the mortgagor, [TAL] in the present case. I simply cannot see how it could be argued that if the purchaser or chargee knows nothing of the problem underlying the intermediate owner's title, that the registration of the charge or sale to the ultimate purchaser or chargee can be said to be a mistake. That seems to me inconsistent with the structure and terms of the 2002 Act. So the question is whether Mr Guy can show an arguable case, on the evidence, for saying that [the] Bank had actual notice or was turning a blind eye to matters that it knew, which would if it addressed them properly, have shown it that [TAL] did not have a good title to the property."
- He then turned to the question he identified in the last sentence in that passage, and effectively concluded that Mr Guy had no evidence which supported his contention that the Bank had sufficient grounds for suspecting any wrong-doing or the like to lead it to believe, or even to suspect, that the basis for TAL's registered title was in any way questionable.
- Mr Stewart argued that the question whether Mr Guy could invoke paragraph 2(1)(a) of schedule 4 to the 2002 Act for the purpose of removing the registration of the Charge raised a difficult point of law, for which permission to appeal should have been given. His case amounted to this, that the decision of Carnwath and Lloyd LJJ to refuse Mr Guy's application for permission to appeal was so plainly wrong in principle and so unjust in its consequences that we should reconsider the application. Mr Stewart also contended that the point is of sufficient importance both to Mr Guy and more generally, and sufficiently open to argument, to justify the contention that the issue of permission to appeal should be reopened.
- Before turning to the question of whether we have power to accede to that argument, it is only right to put it in its context. The fact that the point at issue is important to Mr Guy cannot be doubted: the Land appears to have been worth some £30 million. However, the majority of cases are important to at least one of the parties, sometimes financially and sometimes more personally; and this case is important to the Bank, although not of course to the same degree as to Mr Guy. The fact that the point at issue is of some general interest and importance in the field of land registration law also cannot be disputed, but, if it is an important point in other cases, it will presumably be determined in another case. Further, there is an issue of importance to the Bank and of fundamental public interest, namely the need for finality, as discussed below.
- In addition, this is not a case where the court proceeded on 9 April 2008 in ignorance of any relevant cases, articles or textbooks. As Lloyd LJ said at  EWCA Civ 452, para 22, there were differing views expressed on the point at issue in the then-current editions of two leading textbooks, Ruoff and Roper on Registered Conveyancing (which, as Lloyd LJ said, "took the view that the reading of 'a mistake' is narrow and the concept of mistake is restricted to mistake in registration"), and Emmet and Farrand on Title, (which, he said, "expresses a different view"). Lloyd LJ also considered an interlocutory decision of His Honour Judge Peter Langan QC, Fretwell v Graves, handed down in the Leeds District Registry of the High Court on 16 March 2005, in which the point was held to be arguable either way.
- Nor is this a case where the applicant is able to refer to any subsequent decision of this court or of the Supreme Court in which it has been suggested, let alone held, that the conclusion reached by Lloyd LJ was wrong. The material we were referred to by Mr Stewart which post-dates the 9 April 2008 hearing consisted of a more recent edition of Emmet and Farrand (in which the editors adhere to their view and criticise the decision of 9 April 2008), a decision of Mr Owen Rhys, a Deputy Adjudicator of the Registry, in Ajibade v Bank of Scotland PLC (REF/2006/0163/0174, 8 April 2008), and a concession made by the Chief Land Registrar in the High Court Registry, Odogwu v Vastguide. Not only do those documents not contain anything which is binding on this court, but they do not include material which seems likely to have taken matters further than they were on 9 April 2008.
- I turn then to the rule under which this application is made and the leading recent authorities in this court on the issue of reopening decisions.
- CPR 52.17(1) provides that:
"The Court of Appeal or the High Court will not reopen a final determination of any appeal unless
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy."
CPR 52.17(2) states that "appeal" includes an application for permission to appeal.
- It is clearly established that CPR 52.17 is to be construed in accordance with the principles laid down by this court in Taylor v Lawrence  EWCA Civ 90,  QB 528, and is not intended to give the court a more general discretion see Taylor  QB 528, para 57, which no doubt prompted the Rule, and the discussions in the later decisions of this court in In re Uddin (A Child)  EWCA Civ 52,  1 WLR 2398, para 5 and Jaffray v Society of Lloyd's  EWCA Civ 586,  1 WLR 75, para 8.
- In Taylor  QB 528, para 6, the court referred to the "fundamental principle of our common law that the outcome of litigation should be final", and quoted some important remarks of Lord Wilberforce in The Ampthill Peerage  AC 547, 569, where he said that it was "high in the category of essential principles" that "limits be placed on the right of citizens to open or reopen disputes", and that this sometimes meant that "there are cases where the certainty of justice prevails over the possibility of truth
and these are cases where the law insists on finality." These competing interests were referred to in Taylor  QB 528, para 26. After rejecting two other suggested bases for such a power, the court then turned to the contention that it had a "power to reopen its judgments" "in special and exceptional circumstances" - Taylor  QB 528, para 38.
- Although the court accepted that contention, it emphasised that the ambit of the power was very narrow. At  QB 528, para 44, reference was made to what Lord Browne-Wilkinson said in Ex p Pinochet Ugarte (No 2)  AC 119, 132, namely that "there can be no question of [a] decision [of the House of Lords] being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong." The court then concluded that the court's jurisdiction to reopen a decision was based on its power to take actions "to maintain its character as a court of justice" -  QB 528, para 53. The two examples given in that case were the judge inadvertently having read the wrong papers and not appreciating it even when giving judgment, and subsequent evidence of bias on the part of the judge ( QB 528, paras 41 and 55.
- In Uddin  1 WLR 2398, para 18, the court said this:
"[T]he Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process
has been critically undermined.
[T]he jurisdiction is
with special circumstances where the process itself has been corrupted. The instances variously discussed in Taylor v Lawrence or in other learning there cited are instructive. Fraud
. ; bias; the eccentric case where the judge had read the wrong papers; the vice in all these cases is not, or not necessarily, that the decision was factually incorrect but that it was arrived at by a corrupted process."
- The court then went on to consider whether the discovery of fresh evidence could ever justify reopening a decision, and concluded that it required a high test, adding, at  1 WLR 2398, para 22, that "[t]hat test will generally be met where the process has been corrupted. It may be met where it is shown that a wrong result was earlier arrived at. It will not be met where it is shown only that a wrong result may have been arrived at." That view was supported by the court's ruling out certain arguments at  1 WLR 2398, para 51.
- In Jaffray  1 WLR 75, paras 13 and 14, the court observed that Taylor  QB 528 was a case of alleged bias on the part of the judge hearing the case, and went on, at  1 WLR 75, paras 15-23 to conclude that CPR 52.17 could not be invoked in a case where the earlier judgment, at least in the lower court, was obtained by fraud or other dishonesty, leaving open the position where the dishonesty was perpetrated in this court. At  1 WLR 75, para 62, the applicants in that case were described as "seeking to re-open the appeal in order to put forward an argument that was always available to them but which no one thought, or wished, to pursue", which was roundly rejected as being "miles away from the proper ambit of Taylor v Lawrence".
- Unfortunately for Mr Guy, it appears to me to be clear from these authorities that his present application must fail. In truth, his only argument is that at the hearing of his application on 9 April 2008, Carnwath and Lloyd LJJ were wrong, on the basis of the material before them, to conclude that his appeal stood no realistic prospect of success. It is not even as if he is contending that there was material available as at 9 April 2008, which should have been, but was not, shown to the court; it is not even as if there is any subsequently available material which shows that the decision on that date would probably have been different. (That is not to decry the decision of Mr Rhys, but, well expressed though it is, the decision was plainly not binding on this court.) I should perhaps add that, in the light of the cases considered earlier in this judgment, it does not seem to me that this application could succeed even if either of those points was made out.
- It is fair to say that Mr Stewart has advanced Mr Guy's case, in so far as it relies on para 2(1) of schedule 4 to the 2002 Act, much more strongly than it appears to have been argued on 9 April 2008, and on at least one basis which does not seem to have been raised on that date.
- The skeleton argument produced on behalf of Mr Guy for the 9 April 2008 hearing seems, albeit impliedly, to concede the point which he is now raising, and really puts his case on the alleged blind eye knowledge which the Bank had of the wrongful registration of TAL as proprietor. On that basis, it appears to me that, on 9 April 2008, Lloyd LJ could have been forgiven for assuming that the point now raised was not being strongly advanced.
- It also seems clear that Lloyd LJ's analysis proceeded on the basis that the alleged "mistake" for the purposes of para 2(1) of schedule 4 to the 2002 Act was the registration of the Charge in the charges registers. However, there are other ways of putting Mr Guy's case, namely (a) that the removal of his name from the proprietorship register was a mistake, and, in order to correct that mistake, the Charge would have to be removed from the charges register, or (b) that the registration of the Charge flowed from the mistake of registering the Transfer, and therefore should be treated as part and parcel of that mistake.
- Neither of these points can be said to be exceptional in their character; nor can they be characterised as "corrupting the judicial process", or even near to doing so. If a party fails to advance a point, or argues a point ineptly, that would not, at least without more, justify reopening a court decision. If it could be shown that the judge had completely failed to understand a clearly articulated point, it is possible that his decision might be susceptible to being re-opened (particularly if the facts were as extreme in their nature as a judge failing to read the right papers for the case and never realising it). As to the notion that a decision can be reopened to enable an unsuccessful applicant to put one of his arguments better than he had done at the original trial, that seems wrong in principle, and plainly inconsistent with what was said in Jaffray  1 WLR 75, para 62.
- It is right to address the point (which Mr Stewart perhaps implied rather than expressed) that the decision of 9 April 2008, when this court refused Mr Guy permission to appeal the decision of Mr Mowschenson, was so wrong that to allow it to stand would, in effect, corrupt the judicial process. It seems to me that that point is not maintainable. In his judgment, Lloyd LJ considered in terms whether it was reasonably arguable that the registration of the Bank's charge could be removed on the ground that it was correcting a "mistake", and having considered the statutory wording, the arguments, the two leading textbooks, and the decision of Judge Langan, he concluded that it was not, and Carnwath LJ agreed. The worst that can be said about that decision is that the court should have concluded that the point was arguable, but, even if that was right (and it is unnecessary and inappropriate to make a finding in that connection), it would go no further than establishing that the court reached a wrong decision in law by holding the point to be unarguable: the fact that the court went wrong in law is clearly not enough to justify invoking CPR 52.17.
- I had considered whether, as suggested as a possibility by Patten LJ in argument, the approach in Taylor  QB 528, Uddin  1 WLR 2398, and Jaffray  1 WLR 75 should not be applied in all its rigour to an application to reopen an application for permission to appeal as opposed to reopening an appeal itself. Such an argument has its attractions: refusal of permission to appeal is a decision reached without the full merits having been considered by a full court, it is a decision based on what is ultimately an ex parte application, and, if the decision had gone the other way, the Bank could have applied for it to be set aside.
- I have, however, come to the conclusion that the approach to be adopted in a case such as this, where the application is to reopen a refusal of permission to appeal, should be the same as that where the application is to reopen a final judgment reached after full argument. I find it hard to arrive at any other conclusion in the light of CPR 52.17(2). It would be confusing if a different set of criteria existed for reopening the refusal of permission to appeal and reopening a decision after a full trial. Further, it would be hard to formulate a satisfactory set of different criteria, so that departing from the established approach would raise the spectre of uncertainty, which it is so important to avoid in the law particularly in an area concerned with finality. It would also seem somewhat odd to a successful litigant if he could be more easily be deprived of finality where permission to appeal had been refused than where permission to appeal had been given and an appeal had failed.
- Accordingly, I would dismiss this application.
Lord Justice Patten:
- I agree.
Lady Justice Black:
- I also agree.
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