Ainscough v Ainscough & Anor [2020] EWHC 2909 (Ch) (30 September 2020)

Ainscough v Ainscough & Anor [2020] EWHC 2909 (Ch) (30 September 2020)

The claim for removal of the second defendant's charge is an abuse of process, as it constitutes a collateral attack on the Land Registry's prior administrative decision, which was not challenged by judicial review and was made within statutory powers. The claimant cannot relitigate the issue in court. The transfer to Joseph Ainscough was a forgery, but the Land Registry properly restored the claimant and first defendant as joint proprietors and retained the charge due to exceptional circumstances, including the claimant's acceptance of mortgage proceeds.

Citation
[2020] EWHC 2909 (Ch)
Parties
Claimant: John Joseph Ainscough; First Defendant: Christopher Martin Ainscough; Second Defendant: Bank of Scotland PLC
Jurisdiction
England and Wales
Judgment Date
30 September 2020
Procedural Posture
Part 8 Claim (reallocated to Multi Track, Chancery Division) / Trial Judgment
Outcome
Claim dismissed as abuse of process; no order for rectification of the register or removal of the charge.
Legal Topics
Rectification of Land Register, Abuse of Process, Collateral Attack, Exceptional Circumstances, Forgery, Beneficial Ownership, Mortgage Charge
Property Law Trusts Land Registration Civil Procedure Rectification of Land Register Abuse of Process Collateral Attack Exceptional Circumstances +3 more

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Parties

John Joseph Ainscough

Claimant

Christopher Martin Ainscough

First Defendant

Bank of Scotland PLC

Second Defendant

Procedural Posture

Part 8 Claim (reallocated to Multi Track, Chancery Division) / Trial Judgment

Legal Issues

  1. 1 Whether the claimant is entitled to removal of the first defendant's name from the property register
  2. 2 Whether the claimant is entitled to removal of the second defendant's registered charge
  3. 3 Whether the claim against the second defendant constitutes an abuse of process

Ratio Decidendi

The claim for removal of the second defendant's charge is an abuse of process, as it constitutes a collateral attack on the Land Registry's prior administrative decision, which was not challenged by judicial review and was made within statutory powers. The claimant cannot relitigate the issue in court. The transfer to Joseph Ainscough was a forgery, but the Land Registry properly restored the claimant and first defendant as joint proprietors and retained the charge due to exceptional circumstances, including the claimant's acceptance of mortgage proceeds.

Court Disposition

Claim dismissed as abuse of process; no order for rectification of the register or removal of the charge.

Orders

  • Claim against second defendant dismissed
  • No order for removal of registered charge