Ainscough v Ainscough & Anor

Ainscough v Ainscough & Anor

The claim to remove the second defendant's charge is an abuse of process as it constitutes a collateral attack on a prior Land Registry decision, which was not judicially reviewed. Even if not an abuse, exceptional circumstances exist (claimant and first defendant benefited from mortgage proceeds, claimant acquiesced in the charge, and delay in challenging) justifying refusal to rectify the register. The claim against the first defendant also fails as the parties are tenants in common in equity and no mistake exists to justify rectification.

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
Civil Property/trusts/probate / Judgment After Trial
Outcome
Claim dismissed against both defendants; counterclaim dismissed
Legal Topics
Rectification of Land Register, Abuse of Process, Tenancy in Common, Forgery, Mortgage Charge, Res Judicata/collateral Attack
Property Law Trusts Law Land Registration Civil Procedure Rectification of Land Register Abuse of Process Tenancy in Common Forgery +2 more

Case Brief

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Parties

John Joseph Ainscough

Claimant

Christopher Martin Ainscough

First Defendant

Bank of Scotland PLC

Second Defendant

Procedural Posture

Civil Property/trusts/probate / Judgment After Trial

Legal Issues

  1. 1 Whether the first defendant's name should be removed from the property register
  2. 2 Whether the second defendant's registered charge should be removed from the register
  3. 3 Whether the claim is an abuse of process due to prior Land Registry decision

Ratio Decidendi

The claim to remove the second defendant's charge is an abuse of process as it constitutes a collateral attack on a prior Land Registry decision, which was not judicially reviewed. Even if not an abuse, exceptional circumstances exist (claimant and first defendant benefited from mortgage proceeds, claimant acquiesced in the charge, and delay in challenging) justifying refusal to rectify the register. The claim against the first defendant also fails as the parties are tenants in common in equity and no mistake exists to justify rectification.

Court Disposition

Claim dismissed against both defendants; counterclaim dismissed

Orders

  • Claim against first defendant dismissed
  • Claim against second defendant dismissed