RICHARD CLARK and JUNE ERICA CLARK v Plaintiffs [1994] EWCA Civ 12

IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
[1994] EWCA Civ 12Case No CHANF 92/1286/B, CHANF 93/1395/BVenue Royal Courts of Justice
Between
RICHARD CLARK and JUNE ERICA CLARKPlaintiffsTHE CHIEF LAND REGISTRAR and PETER EDWARD JONESDefendantsCHANCERY PLCPlaintiffRALPH DANIEL (DAVID) KETTERINGHAMDefendant
Before
Lord Justice NourseLord Justice KennedyLord Justice Roch(1) MR. J. MUNBY Q.C. and MR. P. CRAMPIN QC (instructed by the Treasury Solicitor) appeared on behalf of the Appellant/First Defendant.MR. E. NUGEE Q.C. and MR. J. CRAVEN (instructed by Messrs. Hunters, London WC2) appeared on behalf of the Respondents/ Plaintiffs.MR. A. ALLSTON [MR. S. BIRKS 5.5.94] (instructed by Messrs. Hobson & Arditti, London WC1) appeared on behalf of the Second Defendant.Date 5 May 1994

LORD JUSTICE NOURSE:

Introduction

[1]The main question arising on these appeals (the caution point) is whether a caution against dealings lodged in respect of registered land gives the cautioner anything more than a right to be warned of a proposed dealing or entry on the register and a right to assert priority for the interest in respect of which it is lodged. In both courts below that question was answered in the negative. Now the Chief Land Registrar in the first case and the cautioner in the second ask us to hold that the priority sought is achieved by the lodging of the caution and no more. This question, which appears to be fundamental to the system of registered conveyancing in this country, depends on the true construction and effect of the material provisions of the Land Registration Act 1925. In the first case, Clark v. Chief Land Registrar , an anterior question (the charging order point) also arises. It is said by the Chief Land Registrar that the charging order in respect of which the caution was lodged in that case created a charge over interests in the proceeds of sale of land, not over the land itself, with the result that it created no interest capable of being protected on the register. The plaintiff cautioners, Mr and Mrs Richard Clark, to whom the charging order was granted, say that it created a charge over the land, although they accept that, if it did not, the result contended for by the Chief Land Registrar would follow. In the court below Mr Justice Ferris decided this question also in favour of Mr and Mrs Clark. It depends on the true construction and effect of the charging order. Since it was made in standard form, the question again appears to be one of some general importance. On a superficial view of the matter, it might be thought curious that the Chief Land Registrar, whose function is rather to adjudicate in contests between competing interests in registered land than to take sides in them, should have entered into a dispute on questions such as these. The explanation is that Mr and Mrs Clark claim an indemnity under section 83(2) of the 1925 Act:
"Where an error or omission has occurred in the register, but the register is not rectified, any person suffering loss by reason of such error or omission, shall, subject to the provisions of this Act, be entitled to be indemnified."
The admitted omission here was a failure to give to Mr and Mrs Clark a warning to which they were entitled by reason of the lodging of their caution. In arguing the questions, the Chief Land Registrar seeks to protect the public purse against the consequences of the omission by establishing that Mr and Mrs Clark have suffered no damage in respect of which they are entitled to be indemnified. In the court below he also contended that Mr and Mrs Clark's proper remedy was to seek rectification of the register (the rectification point). Again that contention was rejected by Mr Justice Ferris and it was abandoned during the argument in this court. The stance adopted by the Chief Land Registrar has had the paradoxical result that on each of the outstanding points he has put forward an argument contrary to that which he might have been expected to put forward. Thus, on the caution point, acknowledged weaknesses in the drafting of the 1925 Act have been exploited in order to promulgate a view of a caution which, if correct, would both contravene the view consistently taken by his predecessors and blur, if not eliminate, the distinction between a caution and a notice. On the charging order point, he has argued that an order in standard form, almost universally adopted but not previously questioned, did not have the effect which it was clearly intended to have. The hearing of the appeal in Clark v. Chief Land Registrar was fixed to start on 19th January 1994, with an estimated length of three days. Later a direction was made for the hearing of the appeal in Chancery PLC v. Ketteringham at the same time, but for some reason which is not clear the time allocated for the hearing of both appeals remained three days. It was evident from the skeleton arguments lodged in the latter case that counsel intended to advance detailed arguments on the caution point which had not been advanced in the court below in Clark and would not be advanced on the appeal. The parties to both appeals having opted for them to be heard together, we decided to start by hearing argument on the caution point, in order not to detain the parties in Ketteringham longer than was necessary. Moreover, since Mr Gerrans, for Mr Ketteringham, accepted that if the appeal on the caution point failed in Clark , then, subject to two additional points, Mr Ketteringham's appeal must also fail, we heard argument by the appellants in both appeals and then completed the argument in Clark , allowing Mr Gerrans a right of reply as well as Mr Munby QC, for the Chief Land Registrar. At that stage, a majority of the court being of a clear opinion that the appeal on the caution point in Clark must fail and that there was nothing in either of Mr Gerrans' additional points, it became unnecessary for us to call on Mr Scamell, for Chancery PLC, to answer Mr Ketteringham's appeal. Even without Mr Scamell being heard, the argument on the caution point lasted for two and a half days. We then heard a day and a half's argument on the charging order point, the parties in Ketteringham having withdrawn. Now the convenient course is to take the questions in their logical order and, like Mr Justice Ferris, to deal first with the charging order point. Both points being relatively straightforward, I propose to treat only of their essentials. Clark v. Chief Land Registrar The material facts are fully set out in the judgment of Mr Justice Ferris, which is reported at (1993) Ch 294 . They need not be repeated at length. I will state the most important of them. Mr and Mrs Jeffrey Jarvis were the registered proprietors withe title absolute of Spinners Corner, Beaconsfield, Bucks. They were joint tenants of it both at law and in equity. They held the legal estate on trust for sale and the proceeds of sale in trust for themselves as joint tenants. On 5th June 1990 Mr and Mrs Clark obtained judgment against them in proceedings in the Queen's Bench Division for a sum of just under £215,000. By an order nisi made in those proceedings on 3rd August 1990 Mr and Mrs Jarvis' "interest" in Spinners Corner was charged with the payment of that sum together with interest and costs. The order recited the reading of an affirmation of Mr S.T.H. Merrick, an articled clerk with Mr and Mr Clark's solicitors, from which it was said to appear (inter alia) that Mr and Mrs Jarvis had "a beneficial interest" in Spinners Corner. In his affirmation, Mr Merrick stated that it was sought "to impose a charge on the freehold land known as Spinners Corner ... which property is registered at HM Land Registry under Title No.BM52804". He also said that he was informed and verily believed that Mr and Mrs Jarvis were "the beneficial freehold owners" of it and that that fact appeared from the office copy entries on the Register which the court had already ordered to be produced. On 16th August 1990 Mr and Mrs Clark caused a caution to be lodged at the Land Registry against dealings with Spinners Corner. The application was supported by a statutory declaration in standard form made by a partner in their solicitors, who declared that they were interested in the land as the chargees of the charging order nisi dated 3rd August 1990. On 21st November 1990 a charging order absolute was granted. Having recited the reading of Mr Merrick's affirmation and the order nisi, it ordered that the "interest s " of Mr and Mrs Jarvis in Spinners Corner should stand charged with the amount needed to satisfy the judgment. On 29th November a further caution was lodged in respect of that order. On 7th December 1990 Mr and Mrs Jarvis, as part of the compromise of an action in the Chancery Division brought against them by Mr P.E. Jones, the second defendant in this action, executed a legal charge of Spinners Corner in his favour. That legal charge was presented for registration at the Land Registry on 11th December 1990. I take up the narrative in the words of the judge (1993) Ch. 300F:
"It was then that the mistake on the part of the Land Registry occurred. What should have happened was that, on presentation of the second defendant's charge for registration the Land Registry ought to have given notice to the plaintiffs under section 55 of the Land Registration Act 1925 and rule 218 of the Land Registration Rules 1925. On receipt of that notice the plaintiffs would have had an opportunity to object to the registration of the charge in favour of the second defendant. Nobody doubts that they would have availed themselves of that opportunity .... Unfortunately the land Registry failed to serve the requisite notice on the plaintiffs, with the result that they remained in ignorance of the charge in favour of the second defendant. That charge was duly registered, the registration being effective on 11 December 1990, the date when it was lodged for registration."
The subsequent history of the matter and the basis of Mr and Mrs Clark's claim for an indemnity are dealt with by the judge at pp.301B to 302B. The Charging Order Point The operative part of the order nisi was expressed to charge Mr and Mrs Jarvis' "interest" in Spinners Corner. Their interest in the property was the entire legal and beneficial interest. It would therefore seem clear, as a matter of construction, that the order was effective to charge the land, not merely their interests in the proceeds of sale, it being immaterial for this purpose that it was only the beneficial interest that was recited in the order. It would also seem clear, as a matter of construction, that the order absolute, by charging Mr and Mrs Jarvis' "interests" in the property, had the like effect. Mr Munby and Mr Crampin QC, both of whom argued this point on behalf of the Chief Land Registrar, would not allow the orders this simple effect. They said that they must be construed in the light of the provisions of section 2(1) of the Charging Orders Act 1979, RSC, Ord. 50 rr.1 to 4 and Forms Nos. 75 and 76 in Appendix A and the notes thereto; and that, when so construed, they were effective only to charge the interests in the proceeds of sale and not the land itself. Mr Justice Ferris, although he rejected it, was evidently impressed by this line of argument. For my part, I wholly reject the Chief Land Registrar's approach. Admittedly the orders were made in the unmodified Forms Nos. 75 and 76, when they might more appropriately have been made in a modified form. Even that is not clear because, as Mr Nugee QC, for Mr and Mrs Clark, pointed out, the unmodified forms might still be appropriate to orders made, as these could only have been made, under section 2(1)(b)(iii) of the 1976 Act. But suppose that they were made in the wrong form and that there was in consequence some technical breach of the Rules. How can that alter the clear effect of the orders themselves? The Chief Land Registrar's argument did not answer that question. Indeed, much of it was directed towards the desirability of the Registry's being able to ascertain the ambit of a charge without having to look beyond the order itself. That no doubt could be achieved by making more stringent provision in the legislation. For present purposes it is an irrelevance. We must construe the orders in the only way we know, remembering that the Chief Land Registrar can be in no better a position as against Mr and Mrs Clark than Mr and Mrs Jarvis would have been. If an order of the court refers to a person's interest in a specified property without specifying what that interest is, it is both permissible and necessary to look for enlightenment to the evidence which is read into the order. Here both orders recited the reading of Mr Merrick's affirmation, which stated his information and belief that Mr and Mrs Jarvis were the beneficial freehold owners of the property as appearing from the office copy entries on the Register which the court had already ordered to be produced. Those entries did indeed disclose that Mr and Mrs Jarvis were the registered proprietors of the property with title absolute and without any joint proprietorship restriction, thus demonstrating the accuracy of Mr Merrick's information and belief. It is therefore impossible to say that the orders, in referring to Mr and Mrs Jarvis' "interest" or "interests" in the property, did not refer to both legal estate and beneficial interest. Moreover, Mr Merrick stated that it was sought to impose a charge on the freehold land. In all the circumstances it is clear beyond argument that the orders were both intended and effective to charge the land and not merely the interests in the proceeds of sale. For these reasons, I think that Mr Justice Ferris' decision of the charging order point was correct. The Caution Point On the footing that the charging orders created a charge over the land, the Chief Land Registrar contends, in the alternative, that the caution lodged in respect of the order absolute on 29th November 1990 gave and continues to give Mr and Mrs Clark's charge priority over Mr Jones' charge. If this contention were correct, Mr and Mrs Clark would have suffered no damage as a result of the failure to warn the caution and would have no need of an indemnity. However, under advice, they have taken the view that it would be wrong for them to seek to succeed on a ground that was clearly bad, especially when, had it been good, Mr Jones would appear to have had an unanswerable claim for an indemnity in their place. In Megarry and Wade's The Law of Real Property, 5th ed., at p.196, the following reference is made to the Land Registration Act 1925:
"The legislation has received comparatively little judicial interpretation, and much therefore depends upon the practice of the Land Registry. The Registry has to handle great numbers of transactions and at the same time provide a prompt and reliable service to the public. The system is therefore a branch of public administration as well as of property law. In view of the deficiencies of the Act, it is not surprising that the Registry does not always interpret it correctly. Everyday conveyancing requires clear and rapid guidance, even where the clarity does not exist in the law. The Registry has succeeded in constructing a smooth-running machine out of legislation of exceptionally low quality, which is in need of a thorough overhaul."
Anyone who has had frequent experience of dealings with the Land Registry would wish to endorse this general statement of its achievement. But it must be said at once that this is one of those cases where the legislation has not been correctly interpreted. The area in which this case falls is the protection of third parties' interests in registered land. The methods of protection prescribed in part IV of the 1925 Act are four in number: notices (sections 48 to 52); cautions (sections 53 to 56); inhibitions (section 57); and restrictions (section 58). Cautions are divided into those against first registration and those against dealings. Here we are concerned with cautions against dealings. Although experience has shown that there is some overlapping between the various methods of protection, it seems reasonable to start from an assumption that their basic functions were intended to be different. Thus in any consideration of the effect of a caution against dealings it is to be borne in mind that the general effect of a notice, as stated in section 52(1), is that a disposition by the proprietor takes effect subject to all estates, rights and claims which are protected thereby; in other words, a notice automatically gives priority to the interest it protects. I turn to sections 53 to 56, which appear under the subheading "Cautions". Section 53, which deals with cautions against first registration, can be disregarded except to observe that its language contains nothing to suggest that the lodging of such a caution achieves priority for the interest in respect of which it is lodged. The sections which deal with cautions against dealings are 54 and 55. Section 56 deals with cautions generally. The marginal note to section 54 is "Cautions against dealings". Subsection (1) provides:
"Any person interested under any unregistered instrument or interested as a judgment creditor, or otherwise howsoever, in any land or charge registered in the name of any other person, may lodge a caution with the registrar to the effect that no dealing with such land or charge on the part of the proprietor is to be registered until notice has been served upon the cautioner: Provided that a person whose estate, right, interest, or claim has been registered or protected by a notice or restriction shall not be entitled (except with the consent of the registrar) to lodge a caution in respect of such an estate, right, interest or claim."
The marginal note to section 55 is "Effect of cautions against dealings". It provides: (1) After any such caution against dealings has been lodged in respect of any registered land or charge, the registrar shall not, without the consent of the cautioner, register any dealing or make any entry on the register for protecting the rights acquired under a deposit of a land or charge certificate or other dealing by the proprietor with such land or charge until he has served notice on the cautioner, warning him that his caution will cease to have any effect after the expiration of the prescribed number of days next following the date at which such notice is served; and after the expiration of such time as aforesaid the caution shall cease unless an order to the contrary is made by the registrar, and upon the caution so ceasing the registered land or charge may be dealt with in the same manner as if no caution had been lodged. (2) If before the expiration of the said period the cautioner, or some person on his behalf, appears before the registrar, and where so required by the registrar gives sufficient security to indemnify every party against any damage that may be sustained by reason of any dealing with the registered land or charge, or the making of any such entry as aforesaid, being delayed, the registrar may thereupon, if he thinks fit to do so, delay registering any dealing with the land or charge or making any such entry for such period as he thinks just." The marginal note to section 56 is "General provisions as to cautions". Subsection (2) provides:
"A caution lodged in pursuance of this Act shall not prejudice the claim or title of any person and shall have no effect whatever except as in this Act mentioned."
Those are the material provisions of the 1925 Act appearing under the subheading "Cautions". It is those provisions which were clearly intended to describe their nature and declare their effect. If viewed in isolation, they give no support at all to the notion that the lodging of a caution against dealings automatically achieves priority for the interest in respect of which it is lodged. What they do is to institute a procedure whereby a person interested in the land may ensure that he is warned of any proposed dealing and given an opportunity to assert priority for his interest. The procedure is amplified by rules 218 to 221 of the Land Registration Rules 1925, one of the methods of conferring priority specified by rule 220(3) being the registration of the dealing subject to a notice protecting the cautioner's interest. If that is not enough to refute the suggestion that priority is achieved by the lodging of the caution and no more, the provisions of section 56(2) are conclusive. The first part of that subsection, in contrast to the language of section 52(1), provides that a caution shall not prejudice the claim or title of any person; the second that it shall have no effect whatever except as is mentioned in the Act. That effect is to be found in section 55 as amplified by rules 218 to 221; not in the peripheral provisions of which mention must be made hereafter. As Sir Robert Megarry and Sir William Wade have observed, the legislation having received comparatively little judicial interpretation, much depends on the practice of the Land Registry. Since 1958 the repository of that practice has been The Law and Practice of Registered Conveyancing, the first edition of which was produced in that year by two former chief land registrars, Sir George Curtis and Mr Theodore Ruoff. At p.727, under the subheading "Cautions against dealings", they said:
"There is nothing in the Land Registration Act which expressly suggests that the caution gives constructive notice of the cautioner's claim, right or interest, and it certainly does not confer any kind of priority. Nor does it prejudice the claim or title of any person and has no effect whatever except as stated in the Act."
In the current edition (dating from 1991) edited by three other former chief land registrars, that passage reads, at p.7/2:
"There is nothing in the Land Registration Act which states that the caution gives constructive notice of the cautioner's claim, right or interest. It does not prejudice the claim or title of any person and has no effect whatever except as stated in the Act."
The substantive amendment to the first of these two passages, i.e. the deletion of the words "and it certainly does not confer any kind of priority", was made in the 2nd edition (1965), edited by Mr Ruoff alone, where a footnote referred to the recently reported decision at first instance in Re White Rose Cottage (1964) Ch.483 (see below). In Barclays Bank Ltd. v. Taylor (1974) Ch.137 Russell LJ, in delivering the judgment of this court, said of a caution against dealings lodged in order to protect the interest of the purchasers under a contract for the purchase of land, at p.147A:
"The caution lodged on behalf of the purchasers had no effect whatever by itself on priorities: it simply conferred on the cautioners the right to be given notice of any dealing proposed to be registered (see sections 54 and 55) so that they might have the opportunity of contending that it would be a dealing which would infringe their rights and to which the applicants for the registration were not as against them entitled. The limited function of such a caution is stressed by section 56(2) ..."
At p.147F, having observed that the purchasers' caution did not and could not confer on their equitable entitlement or interest any priority over the bank's equitable charge, Russell LJ continued:
"We should add that counsel for the [purchasers] was quite unable to point to any provision in the statute which stated that their caution as such gave them priority in respect of their equitable interest over the earlier equitable interest of the bank under its mortgage. If such had been the intention of the legislature, it would not have been difficult for the statute to have so provided ..."
The views expressed by the authors and successive editors of The Law and Practice of Registered Conveyancing and by this court in Barclays Bank Ltd. v. Taylor are decisive of the caution point. They have the very great merit of having been based essentially on those provisions (sections 54 to 56) which were clearly intended to describe and declare the nature and effect of cautions against dealings. They show that it is for that purpose unnecessary to look beyond those provisions. The deletion of Sir George Curtis' and Mr Ruoff's original firm opinion that cautions do not confer any kind of priority, an opinion which is as correct now as it was then, is of no significance. The lack of priority remains implicit in the revised version. Moreover, the attempts made in argument to depreciate the manifest value of the views expressed in Barclays Bank Ltd. v. Taylor were unsuccessful. The principal consequence of the arguments advanced on behalf of the Chief Land Registrar and Mr Ketteringham was to demonstrate the unwisdom of straying from sections 54 to 56 to other provisions of the 1925 Act. It is hardly surprising that counsel were able to extract from legislation "of exceptionally low quality" provisions which, on a myopic view, give some semblance of support for those arguments. None of those provisions can prevail over the clear effect of sections 54 to 56. In this court, as in the courts below, the appellants relied principally on section 59(1) and (6) of the 1925 Act and Parkash v. Irani Finance Ltd. (1970) Ch.101. For the reasons given by Mr Justice Ferris at (1993) Ch.311F to 313H, I agree with him that those provisions and that decision do not assist them. For myself, I am certain that Plowman J, a judge of great experience in conveyancing matters, did not intend to suggest that a caution had much the same effect as a notice. The other provision of the 1925 Act on which the appellants mainly relied was section 20(1)(a). While I would certainly accept that cautions, once recorded in the Registry, are "entries .. appearing on the register" within that provision and that what it means is "subject to rights and interests created by any document or transaction recorded as an entry" - see Kitney v. MEPC Ltd. (1977) 1 WLR 981, 989G - like Mr Justice Ferris, I am unable to see how it can elevate cautions to a status and effect not given to them by sections 54 to 56. The same answer can be given to an argument based on that part of rule 220(3) which empowers the registrar to order that the caution shall continue to have effect. In my view Mr Justice Ferris' decision of the caution point was, like his decision of the charging order point, correct. As I have said, the Chief Land Registrar's contention as to the rectification point was abandoned during the argument in this court. There can be no doubt that the judge's decision of that point was also correct. Chancery PLC v. Ketteringham The facts of this case can be briefly stated. On 23rd December 1987 three individuals trading as B & C Developments ("B & C") agreed to grant Mr Ketteringham a long lease at a low rent of one of the flats in a block they were intending to construct on freehold premises owned by them at Parkstone in Dorset and of which they were registered as the proprietors with title absolute on 3rd February 1988. On 11th March 1988 a caution protecting Mr Ketteringham's estate contract in respect of the flat was registered in the proprietorship register. B & C then negotiated a loan facility from Chancery PLC on terms that the latter would be granted security by way of a charge over the freehold of the premises. An approach having been made to Mr Ketteringham in May, on 3rd June 1988 his solicitors wrote to the Land Registry, with a copy to B & C's solicitors, referring to his caution and stating:
"Please accept this letter as a consent to the registration of a legal charge in favour of [Chancery PLC]"
. On 8th June 1988 B & C executed a legal charge over the freehold of the premises in favour of Chancery PLC and on 27th June the charge was entered in the charges register. In August 1989 Mr Ketteringham went into occupation of the flat, no lease having been granted to him by B & C. In 1991 he obtained orders for specific performance of the agreement to grant him a lease, but by that time B & C were in financial difficulties and Chancery PLC was seeking to enforce its charge against them. Mr Ketteringham maintained that the registration of his caution gave his estate contract priority over Chancery PLC's charge. On 27th August 1992 Chancery PLC issued an originating summons against him in the Chancery Division claiming declarations to the contrary effect. The proceedings came on for trial before Mr David Neuberger QC, sitting as a deputy judge of the Chancery Division. By that time the decision of Mr Justice Ferris in Clark v. Chief Land Registrar had been decided and reported. So far as the caution point was concerned, it seemed to the learned deputy judge that the only significant difference between the two cases was that in the former the charge was registered without the necessary warning having been given to Mr and Mrs Clark, whereas in the latter Mr Ketteringham had been requested to give his consent to the registration of Chancery PLC's charge and had done so. However, it was conceded by Mr Ketteringham that that was not a ground for distinguishing the two cases and that, if he was to succeed, the deputy judge would have to refuse to follow the decision of Mr Justice Ferris. In a reserved judgment delivered on 23rd September 1993 Mr Neuberger followed the decision of Mr Justice Ferris and granted the declarations sought by Chancery PLC. Two additional points arise in this case. Before Mr Neuberger Mr Gerrans submitted that the decision of Mr Justice Ferris was inconsistent with the decision of this court in Re White Rose Cottage (1965) Ch.940, which had not been cited in the earlier case. That submission was rejected by the deputy judge, mainly on the ground that the decision and reasoning in Re White Rose Cottage were fully compatible with the conclusion reached by Mr Justice Ferris. Mr Gerrans repeated his submission in this court, but I respectfully agree with and adopt the view of Mr Neuberger. Mr Gerrans also based an argument on section 107(1) of the 1925 Act, an argument which was not available to the Chief Land Registrar in Clark . That subsection starts by providing that a registered proprietor may in general enter into any contract in reference to the land or charge in like manner as if it had not been registered. It continues:
"subject to any disposition for valuable consideration which may be registered or protected on the register before the contract is completed or protected on the register, the contract may be enforced as a minor interest against any succeeding proprietor in like manner and to the same extent as if the land or charge had not been registered"
. Mr Gerrans submitted that Chancery PLC's charge was not registered before Mr Ketteringham's estate contract was "protected on the register" by the caution; that Chancery PLC was a "succeeding proprietor"; and that the estate contract therefore had priority over the charge. The short answer to this submission is that although the estate contract was indeed "protected" by the procedure instituted by sections 54 to 56, it is again impossible for a provision such as section 107(1) to give it a priority not given to it by those sections. Accordingly, there being nothing in either of Mr Gerrans' additional points, I think that Mr Neuberger's decision of the caution point was also correct. I would dismiss both appeals. LORD JUSTICE KENNEDY: I agree. LORD JUSTICE ROCH: I also agree.[2]In the first case, Clark v. Chief Land Registrar , an anterior question (the charging order point) also arises. It is said by the Chief Land Registrar that the charging order in respect of which the caution was lodged in that case created a charge over interests in the proceeds of sale of land, not over the land itself, with the result that it created no interest capable of being protected on the register. The plaintiff cautioners, Mr and Mrs Richard Clark, to whom the charging order was granted, say that it created a charge over the land, although they accept that, if it did not, the result contended for by the Chief Land Registrar would follow. In the court below Mr Justice Ferris decided this question also in favour of Mr and Mrs Clark. It depends on the true construction and effect of the charging order. Since it was made in standard form, the question again appears to be one of some general importance.[3]On a superficial view of the matter, it might be thought curious that the Chief Land Registrar, whose function is rather to adjudicate in contests between competing interests in registered land than to take sides in them, should have entered into a dispute on questions such as these. The explanation is that Mr and Mrs Clark claim an indemnity under section 83(2) of the 1925 Act:
"Where an error or omission has occurred in the register, but the register is not rectified, any person suffering loss by reason of such error or omission, shall, subject to the provisions of this Act, be entitled to be indemnified."
[4]The admitted omission here was a failure to give to Mr and Mrs Clark a warning to which they were entitled by reason of the lodging of their caution. In arguing the questions, the Chief Land Registrar seeks to protect the public purse against the consequences of the omission by establishing that Mr and Mrs Clark have suffered no damage in respect of which they are entitled to be indemnified. In the court below he also contended that Mr and Mrs Clark's proper remedy was to seek rectification of the register (the rectification point). Again that contention was rejected by Mr Justice Ferris and it was abandoned during the argument in this court.[5]The stance adopted by the Chief Land Registrar has had the paradoxical result that on each of the outstanding points he has put forward an argument contrary to that which he might have been expected to put forward. Thus, on the caution point, acknowledged weaknesses in the drafting of the 1925 Act have been exploited in order to promulgate a view of a caution which, if correct, would both contravene the view consistently taken by his predecessors and blur, if not eliminate, the distinction between a caution and a notice. On the charging order point, he has argued that an order in standard form, almost universally adopted but not previously questioned, did not have the effect which it was clearly intended to have.[6]The hearing of the appeal in Clark v. Chief Land Registrar was fixed to start on 19th January 1994, with an estimated length of three days. Later a direction was made for the hearing of the appeal in Chancery PLC v. Ketteringham at the same time, but for some reason which is not clear the time allocated for the hearing of both appeals remained three days. It was evident from the skeleton arguments lodged in the latter case that counsel intended to advance detailed arguments on the caution point which had not been advanced in the court below in Clark and would not be advanced on the appeal. The parties to both appeals having opted for them to be heard together, we decided to start by hearing argument on the caution point, in order not to detain the parties in Ketteringham longer than was necessary. Moreover, since Mr Gerrans, for Mr Ketteringham, accepted that if the appeal on the caution point failed in Clark , then, subject to two additional points, Mr Ketteringham's appeal must also fail, we heard argument by the appellants in both appeals and then completed the argument in Clark , allowing Mr Gerrans a right of reply as well as Mr Munby QC, for the Chief Land Registrar. At that stage, a majority of the court being of a clear opinion that the appeal on the caution point in Clark must fail and that there was nothing in either of Mr Gerrans' additional points, it became unnecessary for us to call on Mr Scamell, for Chancery PLC, to answer Mr Ketteringham's appeal.[7]Even without Mr Scamell being heard, the argument on the caution point lasted for two and a half days. We then heard a day and a half's argument on the charging order point, the parties in Ketteringham having withdrawn. Now the convenient course is to take the questions in their logical order and, like Mr Justice Ferris, to deal first with the charging order point. Both points being relatively straightforward, I propose to treat only of their essentials. Clark v. Chief Land Registrar[8]The material facts are fully set out in the judgment of Mr Justice Ferris, which is reported at (1993) Ch 294 . They need not be repeated at length. I will state the most important of them.[10]Mr and Mrs Jeffrey Jarvis were the registered proprietors withe title absolute of Spinners Corner, Beaconsfield, Bucks. They were joint tenants of it both at law and in equity. They held the legal estate on trust for sale and the proceeds of sale in trust for themselves as joint tenants. On 5th June 1990 Mr and Mrs Clark obtained judgment against them in proceedings in the Queen's Bench Division for a sum of just under £215,000. By an order nisi made in those proceedings on 3rd August 1990 Mr and Mrs Jarvis' "interest" in Spinners Corner was charged with the payment of that sum together with interest and costs. The order recited the reading of an affirmation of Mr S.T.H. Merrick, an articled clerk with Mr and Mr Clark's solicitors, from which it was said to appear (inter alia) that Mr and Mrs Jarvis had "a beneficial interest" in Spinners Corner. In his affirmation, Mr Merrick stated that it was sought "to impose a charge on the freehold land known as Spinners Corner ... which property is registered at HM Land Registry under Title No.BM52804". He also said that he was informed and verily believed that Mr and Mrs Jarvis were "the beneficial freehold owners" of it and that that fact appeared from the office copy entries on the Register which the court had already ordered to be produced. On 16th August 1990 Mr and Mrs Clark caused a caution to be lodged at the Land Registry against dealings with Spinners Corner. The application was supported by a statutory declaration in standard form made by a partner in their solicitors, who declared that they were interested in the land as the chargees of the charging order nisi dated 3rd August 1990.[11]On 21st November 1990 a charging order absolute was granted. Having recited the reading of Mr Merrick's affirmation and the order nisi, it ordered that the "interest s " of Mr and Mrs Jarvis in Spinners Corner should stand charged with the amount needed to satisfy the judgment. On 29th November a further caution was lodged in respect of that order.[12]On 7th December 1990 Mr and Mrs Jarvis, as part of the compromise of an action in the Chancery Division brought against them by Mr P.E. Jones, the second defendant in this action, executed a legal charge of Spinners Corner in his favour. That legal charge was presented for registration at the Land Registry on 11th December 1990. I take up the narrative in the words of

the judge (1993) Ch. 300F:

"It was then that the mistake on the part of the Land Registry occurred. What should have happened was that, on presentation of the second defendant's charge for registration the Land Registry ought to have given notice to the plaintiffs under section 55 of the Land Registration Act 1925 and rule 218 of the Land Registration Rules 1925. On receipt of that notice the plaintiffs would have had an opportunity to object to the registration of the charge in favour of the second defendant. Nobody doubts that they would have availed themselves of that opportunity .... Unfortunately the land Registry failed to serve the requisite notice on the plaintiffs, with the result that they remained in ignorance of the charge in favour of the second defendant. That charge was duly registered, the registration being effective on 11 December 1990, the date when it was lodged for registration."
[13]The subsequent history of the matter and the basis of Mr and Mrs Clark's claim for an indemnity are dealt with by the judge at pp.301B to 302B. The Charging Order Point[14]The operative part of the order nisi was expressed to charge Mr and Mrs Jarvis' "interest" in Spinners Corner. Their interest in the property was the entire legal and beneficial interest. It would therefore seem clear, as a matter of construction, that the order was effective to charge the land, not merely their interests in the proceeds of sale, it being immaterial for this purpose that it was only the beneficial interest that was recited in the order. It would also seem clear, as a matter of construction, that the order absolute, by charging Mr and Mrs Jarvis' "interests" in the property, had the like effect.[15]Mr Munby and Mr Crampin QC, both of whom argued this point on behalf of the Chief Land Registrar, would not allow the orders this simple effect. They said that they must be construed in the light of the provisions of section 2(1) of the Charging Orders Act 1979, RSC, Ord. 50 rr.1 to 4 and Forms Nos. 75 and 76 in Appendix A and the notes thereto; and that, when so construed, they were effective only to charge the interests in the proceeds of sale and not the land itself. Mr Justice Ferris, although he rejected it, was evidently impressed by this line of argument.[16]For my part, I wholly reject the Chief Land Registrar's approach. Admittedly the orders were made in the unmodified Forms Nos. 75 and 76, when they might more appropriately have been made in a modified form. Even that is not clear because, as Mr Nugee QC, for Mr and Mrs Clark, pointed out, the unmodified forms might still be appropriate to orders made, as these could only have been made, under section 2(1)(b)(iii) of the 1976 Act. But suppose that they were made in the wrong form and that there was in consequence some technical breach of the Rules. How can that alter the clear effect of the orders themselves? The Chief Land Registrar's argument did not answer that question. Indeed, much of it was directed towards the desirability of the Registry's being able to ascertain the ambit of a charge without having to look beyond the order itself. That no doubt could be achieved by making more stringent provision in the legislation. For present purposes it is an irrelevance. We must construe the orders in the only way we know, remembering that the Chief Land Registrar can be in no better a position as against Mr and Mrs Clark than Mr and Mrs Jarvis would have been.[17]If an order of the court refers to a person's interest in a specified property without specifying what that interest is, it is both permissible and necessary to look for enlightenment to the evidence which is read into the order. Here both orders recited the reading of Mr Merrick's affirmation, which stated his information and belief that Mr and Mrs Jarvis were the beneficial freehold owners of the property as appearing from the office copy entries on the Register which the court had already ordered to be produced. Those entries did indeed disclose that Mr and Mrs Jarvis were the registered proprietors of the property with title absolute and without any joint proprietorship restriction, thus demonstrating the accuracy of Mr Merrick's information and belief. It is therefore impossible to say that the orders, in referring to Mr and Mrs Jarvis' "interest" or "interests" in the property, did not refer to both legal estate and beneficial interest. Moreover, Mr Merrick stated that it was sought to impose a charge on the freehold land. In all the circumstances it is clear beyond argument that the orders were both intended and effective to charge the land and not merely the interests in the proceeds of sale.[18]For these reasons, I think that Mr Justice Ferris' decision of the charging order point was correct. The Caution Point[19]On the footing that the charging orders created a charge over the land, the Chief Land Registrar contends, in the alternative, that the caution lodged in respect of the order absolute on 29th November 1990 gave and continues to give Mr and Mrs Clark's charge priority over Mr Jones' charge. If this contention were correct, Mr and Mrs Clark would have suffered no damage as a result of the failure to warn the caution and would have no need of an indemnity. However, under advice, they have taken the view that it would be wrong for them to seek to succeed on a ground that was clearly bad, especially when, had it been good, Mr Jones would appear to have had an unanswerable claim for an indemnity in their place.[20]In Megarry and Wade's The Law of Real Property, 5th ed., at p.196, the following reference is made to the Land Registration Act 1925:
"The legislation has received comparatively little judicial interpretation, and much therefore depends upon the practice of the Land Registry. The Registry has to handle great numbers of transactions and at the same time provide a prompt and reliable service to the public. The system is therefore a branch of public administration as well as of property law. In view of the deficiencies of the Act, it is not surprising that the Registry does not always interpret it correctly. Everyday conveyancing requires clear and rapid guidance, even where the clarity does not exist in the law. The Registry has succeeded in constructing a smooth-running machine out of legislation of exceptionally low quality, which is in need of a thorough overhaul."
[21]Anyone who has had frequent experience of dealings with the Land Registry would wish to endorse this general statement of its achievement. But it must be said at once that this is one of those cases where the legislation has not been correctly interpreted.[22]The area in which this case falls is the protection of third parties' interests in registered land. The methods of protection prescribed in part IV of the 1925 Act are four in number: notices (sections 48 to 52); cautions (sections 53 to 56); inhibitions (section 57); and restrictions (section 58). Cautions are divided into those against first registration and those against dealings. Here we are concerned with cautions against dealings. Although experience has shown that there is some overlapping between the various methods of protection, it seems reasonable to start from an assumption that their basic functions were intended to be different. Thus in any consideration of the effect of a caution against dealings it is to be borne in mind that the general effect of a notice, as stated in section 52(1), is that a disposition by the proprietor takes effect subject to all estates, rights and claims which are protected thereby; in other words, a notice automatically gives priority to the interest it protects.[23]I turn to sections 53 to 56, which appear under the subheading "Cautions". Section 53, which deals with cautions against first registration, can be disregarded except to observe that its language contains nothing to suggest that the lodging of such a caution achieves priority for the interest in respect of which it is lodged. The sections which deal with cautions against dealings are 54 and 55. Section 56 deals with cautions generally.[24]The marginal note to section 54 is "Cautions against dealings". Subsection (1) provides:
"Any person interested under any unregistered instrument or interested as a judgment creditor, or otherwise howsoever, in any land or charge registered in the name of any other person, may lodge a caution with the registrar to the effect that no dealing with such land or charge on the part of the proprietor is to be registered until notice has been served upon the cautioner: Provided that a person whose estate, right, interest, or claim has been registered or protected by a notice or restriction shall not be entitled (except with the consent of the registrar) to lodge a caution in respect of such an estate, right, interest or claim."
[25]The marginal note to section 55 is "Effect of cautions against dealings". It provides:(1) After any such caution against dealings has been lodged in respect of any registered land or charge, the registrar shall not, without the consent of the cautioner, register any dealing or make any entry on the register for protecting the rights acquired under a deposit of a land or charge certificate or other dealing by the proprietor with such land or charge until he has served notice on the cautioner, warning him that his caution will cease to have any effect after the expiration of the prescribed number of days next following the date at which such notice is served; and after the expiration of such time as aforesaid the caution shall cease unless an order to the contrary is made by the registrar, and upon the caution so ceasing the registered land or charge may be dealt with in the same manner as if no caution had been lodged.(2) If before the expiration of the said period the cautioner, or some person on his behalf, appears before the registrar, and where so required by the registrar gives sufficient security to indemnify every party against any damage that may be sustained by reason of any dealing with the registered land or charge, or the making of any such entry as aforesaid, being delayed, the registrar may thereupon, if he thinks fit to do so, delay registering any dealing with the land or charge or making any such entry for such period as he thinks just."[26]The marginal note to section 56 is "General provisions as to cautions". Subsection (2) provides:
"A caution lodged in pursuance of this Act shall not prejudice the claim or title of any person and shall have no effect whatever except as in this Act mentioned."
[27]Those are the material provisions of the 1925 Act appearing under the subheading "Cautions". It is those provisions which were clearly intended to describe their nature and declare their effect. If viewed in isolation, they give no support at all to the notion that the lodging of a caution against dealings automatically achieves priority for the interest in respect of which it is lodged. What they do is to institute a procedure whereby a person interested in the land may ensure that he is warned of any proposed dealing and given an opportunity to assert priority for his interest. The procedure is amplified by rules 218 to 221 of the Land Registration Rules 1925, one of the methods of conferring priority specified by rule 220(3) being the registration of the dealing subject to a notice protecting the cautioner's interest. If that is not enough to refute the suggestion that priority is achieved by the lodging of the caution and no more, the provisions of section 56(2) are conclusive. The first part of that subsection, in contrast to the language of section 52(1), provides that a caution shall not prejudice the claim or title of any person; the second that it shall have no effect whatever except as is mentioned in the Act. That effect is to be found in section 55 as amplified by rules 218 to 221; not in the peripheral provisions of which mention must be made hereafter.[28]As Sir Robert Megarry and Sir William Wade have observed, the legislation having received comparatively little judicial interpretation, much depends on the practice of the Land Registry. Since 1958 the repository of that practice has been The Law and Practice of Registered Conveyancing, the first edition of which was produced in that year by two former chief land registrars, Sir George Curtis and Mr Theodore Ruoff. At p.727, under the subheading "Cautions against dealings", they said:
"There is nothing in the Land Registration Act which expressly suggests that the caution gives constructive notice of the cautioner's claim, right or interest, and it certainly does not confer any kind of priority. Nor does it prejudice the claim or title of any person and has no effect whatever except as stated in the Act."
[29]In the current edition (dating from 1991) edited by three other former chief land registrars, that passage reads, at p.7/2:
"There is nothing in the Land Registration Act which states that the caution gives constructive notice of the cautioner's claim, right or interest. It does not prejudice the claim or title of any person and has no effect whatever except as stated in the Act."
[30]The substantive amendment to the first of these two passages, i.e. the deletion of the words "and it certainly does not confer any kind of priority", was made in the 2nd edition (1965), edited by Mr Ruoff alone, where a footnote referred to the recently reported decision at first instance in Re White Rose Cottage (1964) Ch.483 (see below).[31]In Barclays Bank Ltd. v. Taylor (1974) Ch.137 Russell LJ, in delivering the judgment of this court, said of a caution against dealings lodged in order to protect the interest of the purchasers under a contract for the purchase of land, at p.147A:
"The caution lodged on behalf of the purchasers had no effect whatever by itself on priorities: it simply conferred on the cautioners the right to be given notice of any dealing proposed to be registered (see sections 54 and 55) so that they might have the opportunity of contending that it would be a dealing which would infringe their rights and to which the applicants for the registration were not as against them entitled. The limited function of such a caution is stressed by section 56(2) ..."
[32]At p.147F, having observed that the purchasers' caution did not and could not confer on their equitable entitlement or interest any priority over the bank's equitable charge, Russell LJ continued:
"We should add that counsel for the [purchasers] was quite unable to point to any provision in the statute which stated that their caution as such gave them priority in respect of their equitable interest over the earlier equitable interest of the bank under its mortgage. If such had been the intention of the legislature, it would not have been difficult for the statute to have so provided ..."
[33]The views expressed by the authors and successive editors of The Law and Practice of Registered Conveyancing and by this court in Barclays Bank Ltd. v. Taylor are decisive of the caution point. They have the very great merit of having been based essentially on those provisions (sections 54 to 56) which were clearly intended to describe and declare the nature and effect of cautions against dealings. They show that it is for that purpose unnecessary to look beyond those provisions. The deletion of Sir George Curtis' and Mr Ruoff's original firm opinion that cautions do not confer any kind of priority, an opinion which is as correct now as it was then, is of no significance. The lack of priority remains implicit in the revised version. Moreover, the attempts made in argument to depreciate the manifest value of the views expressed in Barclays Bank Ltd. v. Taylor were unsuccessful.[34]The principal consequence of the arguments advanced on behalf of the Chief Land Registrar and Mr Ketteringham was to demonstrate the unwisdom of straying from sections 54 to 56 to other provisions of the 1925 Act. It is hardly surprising that counsel were able to extract from legislation "of exceptionally low quality" provisions which, on a myopic view, give some semblance of support for those arguments. None of those provisions can prevail over the clear effect of sections 54 to 56.[35]In this court, as in the courts below, the appellants relied principally on section 59(1) and (6) of the 1925 Act and Parkash v. Irani Finance Ltd. (1970) Ch.101. For the reasons given by Mr Justice Ferris at (1993) Ch.311F to 313H, I agree with him that those provisions and that decision do not assist them. For myself, I am certain that Plowman J, a judge of great experience in conveyancing matters, did not intend to suggest that a caution had much the same effect as a notice.[36]The other provision of the 1925 Act on which the appellants mainly relied was section 20(1)(a). While I would certainly accept that cautions, once recorded in the Registry, are "entries .. appearing on the register" within that provision and that what it means is "subject to rights and interests created by any document or transaction recorded as an entry" - see Kitney v. MEPC Ltd. (1977) 1 WLR 981, 989G - like Mr Justice Ferris, I am unable to see how it can elevate cautions to a status and effect not given to them by sections 54 to 56. The same answer can be given to an argument based on that part of rule 220(3) which empowers the registrar to order that the caution shall continue to have effect.[37]In my view Mr Justice Ferris' decision of the caution point was, like his decision of the charging order point, correct. As I have said, the Chief Land Registrar's contention as to the rectification point was abandoned during the argument in this court. There can be no doubt that the judge's decision of that point was also correct. Chancery PLC v. Ketteringham[38]The facts of this case can be briefly stated. On 23rd December 1987 three individuals trading as B & C Developments ("B & C") agreed to grant Mr Ketteringham a long lease at a low rent of one of the flats in a block they were intending to construct on freehold premises owned by them at Parkstone in Dorset and of which they were registered as the proprietors with title absolute on 3rd February 1988. On 11th March 1988 a caution protecting Mr Ketteringham's estate contract in respect of the flat was registered in the proprietorship register. B & C then negotiated a loan facility from Chancery PLC on terms that the latter would be granted security by way of a charge over the freehold of the premises. An approach having been made to Mr Ketteringham in May, on 3rd June 1988 his solicitors wrote to the Land Registry, with a copy to B & C's solicitors, referring to his caution and stating: "Please accept this letter as a consent to the registration of a legal charge in favour of [Chancery PLC]".[39]On 8th June 1988 B & C executed a legal charge over the freehold of the premises in favour of Chancery PLC and on 27th June the charge was entered in the charges register. In August 1989 Mr Ketteringham went into occupation of the flat, no lease having been granted to him by B & C. In 1991 he obtained orders for specific performance of the agreement to grant him a lease, but by that time B & C were in financial difficulties and Chancery PLC was seeking to enforce its charge against them. Mr Ketteringham maintained that the registration of his caution gave his estate contract priority over Chancery PLC's charge. On 27th August 1992 Chancery PLC issued an originating summons against him in the Chancery Division claiming declarations to the contrary effect.[40]The proceedings came on for trial before Mr David Neuberger QC, sitting as a deputy judge of the Chancery Division. By that time the decision of Mr Justice Ferris in Clark v. Chief Land Registrar had been decided and reported. So far as the caution point was concerned, it seemed to the learned deputy judge that the only significant difference between the two cases was that in the former the charge was registered without the necessary warning having been given to Mr and Mrs Clark, whereas in the latter Mr Ketteringham had been requested to give his consent to the registration of Chancery PLC's charge and had done so. However, it was conceded by Mr Ketteringham that that was not a ground for distinguishing the two cases and that, if he was to succeed, the deputy judge would have to refuse to follow the decision of Mr Justice Ferris. In a reserved judgment delivered on 23rd September 1993 Mr Neuberger followed the decision of Mr Justice Ferris and granted the declarations sought by Chancery PLC.[41]Two additional points arise in this case. Before Mr Neuberger Mr Gerrans submitted that the decision of Mr Justice Ferris was inconsistent with the decision of this court in Re White Rose Cottage (1965) Ch.940, which had not been cited in the earlier case. That submission was rejected by the deputy judge, mainly on the ground that the decision and reasoning in Re White Rose Cottage were fully compatible with the conclusion reached by Mr Justice Ferris. Mr Gerrans repeated his submission in this court, but I respectfully agree with and adopt the view of Mr Neuberger.[42]Mr Gerrans also based an argument on section 107(1) of the 1925 Act, an argument which was not available to the Chief Land Registrar in Clark . That subsection starts by providing that a registered proprietor may in general enter into any contract in reference to the land or charge in like manner as if it had not been registered. It continues: "subject to any disposition for valuable consideration which may be registered or protected on the register before the contract is completed or protected on the register, the contract may be enforced as a minor interest against any succeeding proprietor in like manner and to the same extent as if the land or charge had not been registered".[43]Mr Gerrans submitted that Chancery PLC's charge was not registered before Mr Ketteringham's estate contract was "protected on the register" by the caution; that Chancery PLC was a "succeeding proprietor"; and that the estate contract therefore had priority over the charge. The short answer to this submission is that although the estate contract was indeed "protected" by the procedure instituted by sections 54 to 56, it is again impossible for a provision such as section 107(1) to give it a priority not given to it by those sections.[44]Accordingly, there being nothing in either of Mr Gerrans' additional points, I think that Mr Neuberger's decision of the caution point was also correct.[45]I would dismiss both appeals.

LORD JUSTICE KENNEDY: I agree.

LORD JUSTICE ROCH: I also agree.

Order

[48](1) Clark v Chief Land Registrar appeal dismissed with costs, to be taxed in the case of Mr. and Mrs. Clark on an indemnity basis, and in the case of Mr. Jones on the standard basis; variation of the order for costs made in the court below in so far as it related to the costs of Mr. and Mrs. Clark, those costs to be on an indemnity basis.(2) Chancery PLC v Ketteringham appeal dismissed with costs on the standard basis, the order not to be enforced in relation to costs incurred on or after 12th January 1994 without leave of the court; order for legal aid taxation of Mr. Ketteringham's costs on or after 12th January 1994; leave to appeal refused, and grant of stay refused.

Order

(1) Clark v Chief Land Registrar appeal dismissed with costs, to be taxed in the case of Mr. and Mrs. Clark on an indemnity basis, and in the case of Mr. Jones on the standard basis; variation of the order for costs made in the court below in so far as it related to the costs of Mr. and Mrs. Clark, those costs to be on an indemnity basis.(2) Chancery PLC v Ketteringham appeal dismissed with costs on the standard basis, the order not to be enforced in relation to costs incurred on or after 12th January 1994 without leave of the court; order for legal aid taxation of Mr. Ketteringham's costs on or after 12th January 1994; leave to appeal refused, and grant of stay refused. LORD JUSTICE NOURSE: Introduction The main question arising on these appeals (the caution point) is whether a caution against dealings lodged in respect of registered land gives the cautioner anything more than a right to be warned of a proposed dealing or entry on the register and a right to assert priority for the interest in respect of which it is lodged. In both courts below that question was answered in the negative. Now the Chief Land Registrar in the first case and the cautioner in the second ask us to hold that the priority sought is achieved by the lodging of the caution and no more. This question, which appears to be fundamental to the system of registered conveyancing in this country, depends on the true construction and effect of the material provisions of the Land Registration Act 1925.

Cited in 3 later judgments