Clark & Anor v The Chief Land Registrar & Anor [1992] EWHC 1 (Ch) (28 August 1992)

Clark & Anor v The Chief Land Registrar & Anor [1992] EWHC 1 (Ch) (28 August 1992)

The plaintiffs' charging order, though not strictly compliant with all procedural requirements, was intended and effective to create a charge over the land under s.2(1)(b)(iii) of the Charging Orders Act 1979. The Land Registry's failure to serve notice under the plaintiffs' caution deprived them of the opportunity to secure priority over the second defendant's charge by registration of a notice. A caution does not confer priority, and the plaintiffs suffered loss as a result of the Registry's admitted mistake. The plaintiffs are entitled to an indemnity under s.83 of the Land Registration Act 1925. Rectification is not an available or appropriate remedy in the circumstances.

Citation
[1992] EWHC 1 (Ch)
Parties
Plaintiff: Richard Clark; Plaintiff: June Erica Clark; First Defendant: The Chief Land Registrar; Second Defendant: Peter Edward Jones
Jurisdiction
England and Wales
Judgment Date
28 August 1992
Procedural Posture
Chancery Division Civil Claim / Judgment After Trial of Originating Summons
Outcome
Plaintiffs entitled to indemnity under s.83 of the Land Registration Act 1925
Legal Topics
Charging Orders, Land Registry Mistake, Priority of Charges, Indemnity Under Land Registration Act 1925, Rectification of Register, Effect of Cautions
Property Law Land Registration Equity Charging Orders Land Registry Mistake Priority of Charges Indemnity Under Land Registration Act 1925 Rectification of Register +1 more

Case Brief

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Parties

Richard Clark

Plaintiff

June Erica Clark

Plaintiff

The Chief Land Registrar

First Defendant

Peter Edward Jones

Second Defendant

Procedural Posture

Chancery Division Civil Claim / Judgment After Trial of Originating Summons

Legal Issues

  1. 1 Whether the plaintiffs' charging order created a charge over the land or only over the beneficial interest in proceeds of sale
  2. 2 Whether the plaintiffs suffered loss as a result of the Land Registry's failure to serve notice under their caution
  3. 3 Whether the plaintiffs are entitled to an indemnity under s.83 of the Land Registration Act 1925

Ratio Decidendi

The plaintiffs' charging order, though not strictly compliant with all procedural requirements, was intended and effective to create a charge over the land under s.2(1)(b)(iii) of the Charging Orders Act 1979. The Land Registry's failure to serve notice under the plaintiffs' caution deprived them of the opportunity to secure priority over the second defendant's charge by registration of a notice. A caution does not confer priority, and the plaintiffs suffered loss as a result of the Registry's admitted mistake. The plaintiffs are entitled to an indemnity under s.83 of the Land Registration Act 1925. Rectification is not an available or appropriate remedy in the circumstances.

Court Disposition

Plaintiffs entitled to indemnity under s.83 of the Land Registration Act 1925

Orders

  • Declaration that plaintiffs are entitled to indemnity for loss suffered by reason of the Land Registry's failure to serve notice under their caution
  • Costs to be determined