McLaren v Kubiak [2007] EWHC 1065 (Ch) (04 May 2007)

McLaren v Kubiak [2007] EWHC 1065 (Ch) (04 May 2007)

Following the House of Lords in Oxfordshire, the court has no jurisdiction to declare land not registerable as a new green under the 1965 Act; registration is conclusive and the only route to registration is via the statutory process. The claim for a negative declaration is an abuse of process and must be struck out or stayed. Protective costs orders are not available in private law proceedings such as this. Summary judgment cannot be granted as the factual dispute over user as of right cannot be resolved without a trial.

Citation
[2007] EWHC 1065 (Ch)
Parties
Claimant: Stephen McLaren; Defendant: Laurence Stanley Kubiak
Jurisdiction
England and Wales
Judgment Date
04 May 2007
Procedural Posture
Civil / Application for Summary Judgment, Application to Strike Out or Stay, and Application for a Protective Costs Order
Outcome
Claim struck out as an abuse of process or stayed
Legal Topics
Commons Registration, Village Green Registration, Declaratory Relief, Summary Judgment, Protective Costs Orders, Abuse of Process
Property Law Administrative Law Civil Procedure Commons Registration Village Green Registration Declaratory Relief Summary Judgment Protective Costs Orders +1 more

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Parties

Stephen McLaren

Claimant

Laurence Stanley Kubiak

Defendant

Procedural Posture

Civil / Application for Summary Judgment, Application to Strike Out or Stay, and Application for a Protective Costs Order

Legal Issues

  1. 1 Whether the High Court has jurisdiction to declare land not registerable as a new town or village green under the Commons Registration Act 1965 after the House of Lords decision in Oxfordshire County Council v. Oxfordshire City Council
  2. 2 Whether the proceedings should be struck out or stayed as an abuse of process
  3. 3 Whether a protective costs order (PCO) should be granted in private law proceedings

Ratio Decidendi

Following the House of Lords in Oxfordshire, the court has no jurisdiction to declare land not registerable as a new green under the 1965 Act; registration is conclusive and the only route to registration is via the statutory process. The claim for a negative declaration is an abuse of process and must be struck out or stayed. Protective costs orders are not available in private law proceedings such as this. Summary judgment cannot be granted as the factual dispute over user as of right cannot be resolved without a trial.

Court Disposition

Claim struck out as an abuse of process or stayed

Orders

  • Claim struck out
  • No protective costs order granted