PROPERTY CHAMBER, LAND REGISTRATION
FIRST-TIER TRIBUNAL
ORDER
Case Number:
REF/2012/0567
Title Number:
SF30750
Property:
10 Bagnall Street West Bromwich B70 6PN
Applicant:
Parkash Singh
Respondent:
Kelly Kalvinder Kaur Chal
Upon it appearing that the proceedings purportedly issued by the Applicant with claim no. 3BM00353 on 7 February 2012 in the Birmingham County Court were never served on the Respondent and have as a result lapsed
It is ordered as follows:
- The order in these proceedings dated 19 March 2013 is set aside.
- The Chief Land Registrar is directed to give effect to the application of the Respondent dated 14 June 2011 for cancellation of the notice entered on 25 May 2011.
Reasons
- It was ordered by an order dated 15 January 2013 that unless the Applicant commenced court proceedings on or before 29 January 2013 the Adjudicator would require the Chief Land Registrar to give effect to the Respondent’s application. Because of a failure of the court to issue proceedings promptly, although they were lodged in time they were not issued until 7 February 2012.
- As a result of their not being served on the Respondent, the proceedings lapsed in June 2012. The tribunal was not informed of this for over two years.
- There is nothing in the Tribunal Procedure (First tier-Tribunal) (Property Chamber) Rules which clearly covers this situation. However, the overriding objective in rule 3 requires the tribunal to deal with cases fairly and justly, that parties must help the tribunal to further the overriding objective and the tribunal must seek to give effect to the overriding objective when it exercises any power under the rules or interprets any rule or practice direction.
- Rule 39 provides that when a s.110 direction to commence court proceedings is issued, then upon receipt by the tribunal of a notice under rule 38(2(a) that court proceedings have been issued, the tribunal proceedings or the relevant part of those proceedings are automatically stayed pending the final court order. There follow provisions as to what is to happen following receipt of the final court order.
- If a party is permitted to issue proceedings and then simply not serve them, so that the court proceedings lapse, but leaving the tribunal helpless to take matters forward that would plainly not be in accordance with the overriding objective. If at all possible, I must construe the rules to avoid such an anomaly which would leave the unilateral notice in place and the tribunal unable to direct the Chief Land Registrar how to deal with it or with the application for its cancellation.
- It appears to me that there are four possible ways in which this problem can be overcome in the present case. Firstly, I can construe the provision for the proceedings to be adjourned as not preventing the revocation of the s.110 direction. Secondly, the original s.110 direction was not complied with in the present case because it provided, as did the subsequent unless order, for the proceedings to be commenced by a given date, which did not happen. It was only my order of 19 March 2013 which meant that the sanction applied by the previous unless order did not apply. I am unable to construe the provision in rule 39 as to what is to follow when court proceedings are commenced as extending to court proceedings commenced outside the time within which they were to be commenced under the s.110 direction.
- Thirdly, it appears to me that, in the context, I should construe “final court order” as extending to the termination of the proceedings by any means including, for example, service of notice of discontinuance and a failure to serve the claim form. Fourthly, the court proceedings ordered to be commenced were to determine the question whether the transfer of the property should be set aside by reason of undue influence. That related only to part of the matter before the adjudicator when the proceedings were stayed. The question whether the unilateral notice should be cancelled was not referred as such. Under the rules applying in early 2013 (the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules), rule 9 required the adjudicator to stay the proceedings in relation to the part in respect of which proceedings had been directed to be commenced, that is the undue influence question. This left it open to the Adjudicator, and now to the tribunal, to determine to cancel the unilateral notice without determining the undue influence point if it was appropriate to do so to deal fairly and justly with the matter. On that basis, the stay can be lifted if the court proceedings are not properly pursued. In view of the way in which they were not even served, I consider that except insofar as the rules required the stay to be imposed, the matter remained before the adjudicator and is now before the tribunal.
- Given the failure of the Applicant to serve the court proceedings, I am satisfied that to deal with this matter fairly I must now direct the Chief Land Registrar to cancel the unilateral notice. I note that no proper explanation has been provided as to why the court proceedings were never served on the Respondent.
Dated this
Tuesday 23 September 2014
JUDGE MICHAEL MARK
By Order of The Tribunal
