Silkstone & Anor v Tatnall [2010] EWHC 1627 (Ch)

[2010] EWHC 1627 (Ch)Case No CH/2009/APP/0541
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE ADJUDICATOR TO HM LAND REGISTRY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/07/2010
Before
THE HON MR JUSTICE FLOYD
Between
LEONARD STUART SILKSTONEAppellantsGARY GREVILLE SILKSTONEAppellantSIMON DEREK TATNALLFirst RespondentCHIEF LAND REGISTRARSecond Respondent
Bruce Monnington (instructed by Bates Wells & Braithwaite) for Appellants for The First Respondent did not appear and was not representedTimothy Morshead (instructed by Treasury Solicitor) for Second RespondentHearing Hearing date: 24 th June 2010
Judgment
[1]This is an appeal from the Adjudicator to Her Majesty’s Land Registry. The appeal is from a decision of Deputy Adjudicator Mark dated 15th June 2009, and is brought with his limited permission granted by a separate decision on 31st July 2009. The appeal is limited to the question of whether the Adjudicator can refuse permission to a party to withdraw from proceedings before the Adjudicator at any time, and the powers of the Adjudicator in relation to the withdrawal. By an order dated 17th June 2010 I granted the Chief Land Registrar’s application to be joined as a second respondent, as the Registrar wished to make submissions on matters affecting the practice in the Land Registry. Mr Bruce Monnington argued the case for the appellants. Mr Timothy Morshead made the submissions of the Chief Land Registrar. The first respondent, Mr Tatnall, has not participated in the Appeal. It follows that I have not had the benefit of submissions in support of the Deputy Adjudicator’s decision.[2]The dispute concerns a right of way. The appellants, the Silkstones, own No. 2 Croft Cottages, Belchamp Water, Sudbury. The first respondent, Mr Tatnall, owns No. 3, which is next door. The Silkstones claimed to have a right of way on foot through a gate in the rear of the boundary fence between No. 2 and No. 3, through the garden of No. 3 and then through a covered passage to the street at the front.[3]The Silkstones lodged a unilateral notice on the registered title of No. 3 on 7th February 2008 in respect of this right of way. Mr Tatnall applied to cancel the unilateral notice, and the Registrar gave notice of this application to the Silkstones who in their turn objected to the cancellation. A dispute having arisen, the matter was referred to the Adjudicator on 18th June 2008 under section 73(7) of the Land Registration Act 2002. Mr Tatnall was made the applicant in the proceedings before the Adjudicator, as he was the party applying for the unilateral notice to be cancelled. The Silkstones were made respondents to the application. Throughout the proceedings the case for the Silkstones was conducted by their father, Mr Geoffrey Silkstone, as their agent.[4]At an intermediate stage in the proceedings the Silkstones wrote to the Adjudicator requesting disclosure relating to an alternative way of supporting the claim to the right of way, based on Section 62 of the Law of Property Act 1925, as opposed to prescription. The application was dismissed on the grounds that no case under section 62 had been pleaded by the Silkstones. Witness statements were exchanged, and the hearing was set down for Tuesday 2nd and Wednesday 3rd June 2009, with a site view to take place on the afternoon of Monday 1st June.[5]On 28th May 2009 Mr Geoffrey Silkstone wrote to the Adjudicator explaining that he was in difficulty obtaining certain evidence. He said:
“On behalf of the [Silkstones] I therefore request permission from the Adjudicator to withdraw from the proceedings on the 2nd and 3rd June (with site visit on 1st June) to the effect that the disputed application referred to the Adjudicator by the Land Registry should be given effect to leaving the way clear for the [Silkstones] to take out Court proceedings at a later date if they so choose.”
[6]The Adjudicator responded on the following day in the following terms:
“The Adjudicator is not at present prepared simply to permit you to withdraw your claim to a right of way on the basis that you can subsequently resurrect this claim in court. This dispute has been proceeding for almost a year and it appears to the Adjudicator that it could well be unfair to the applicant to permit you to withdraw on this basis just before the final hearing.”
[7]The Adjudicator indicated that the Silkstones could renew their application at the start of the hearing or apply for an adjournment. Also on 29th May 2009, in response to the Adjudicator's communication, Mr Silkstone wrote to the Adjudicator saying that if the Adjudicator was not prepared to permit a withdrawal on the basis indicated in the letter of 28th May, then he requested an adjournment of six weeks.[8]Mr Silkstone sent two further faxes on 1st June 2009. In the first fax, which followed the site inspection, he confirmed that the Silkstones wished to “withdraw their case due to lack of evidence". In the second he wrote to confirm that he had sent two e-mails to Mr Tatnall "confirming the withdrawal”. Finally on 2nd June 2009 Mr Silkstone wrote to confirm and clarify the content of its two faxes of 1st June "by stating that the [Silkstones] withdraw their objection to the Applicant’s application".[9]The Deputy Adjudicator nevertheless held a hearing on 2nd June 2009, attended by Mr Tatnall in person, and issued a decision on the merits on 15th of June 2009. By his decision, he held at [28]:
“A purported notice of withdrawal, whether given to the Land Registry or to the adjudicator, will be ineffective until the adjudicator has ruled on the terms on which the notice will be given effect to and the terms have been accepted by the party seeking to withdraw.”
[10]The Deputy Adjudicator then went on to exercise the discretion which he considered that he held. He decided that he should not give permission to the Silkstones to withdraw their objection without a decision on the merits. He said this at [30]:
“I concluded that I had power to refuse permission to withdraw and that I would have that power even if, without my knowledge, the [Silkstones] had communicated that withdrawal to the Land Registry. I also concluded that in the present case it it would be wrong to permit a withdrawal and that the litigation between the parties needed to be brought to a conclusion.”
[11]As to the substance of the dispute, the Deputy Adjudicator came to the conclusion that: "…it was plain that no case could be made out under either section 62 of the Law Property Act 1925 or under the rule in Wheeldon v Burrows. There was also no admissible evidence to support a claim to a prescriptive easement.”[12]However the Deputy Adjudicator did find that there was a right of access for maintenance and repair for the owners of No. 2 and No. 3 over the property of the other and directed that this should be noted on the register in respect of both titles. In the result he directed the Chief Land Registrar to give effect to the application of Mr Tatnall to cancel the unilateral notice, but to note the rights of entry for the purpose of maintenance and repair on the titles of both properties.[13]The Silkstones submit that the Deputy Adjudicator had no power to refuse to accept their withdrawal from the proceedings and that he had no jurisdiction to deliver a decision on the merits. If they are wrong about that, they submit that he exercised his discretion refusing them permission to withdraw on a flawed basis, and should in any event have said nothing about section 62, which was not a pleaded basis for the existence of the right of way. There is no attack, apart from this, on the substance of the decision.

The statutory framework

[14]The relevant statutory provisions creating the system for entry of unilateral notices, their removal and cancellation are in Part 4 of the Land Registration Act 2002, headed “Notices and Restrictions”. I set out below the relevant parts of sections 34 to 36:
“34 Entry on application (1) A person who claims to be entitled to the benefit of an interest affecting a registered estate or charge may … apply to the registrar for the entry in the register of a notice in respect of the interest. (2) Subject to rules, an application under this section may be for— (a) an agreed notice, or (b) a unilateral notice. 35 Unilateral notices (1) If the registrar enters a notice in the register in pursuance of an application under section 34(2)(b) (“a unilateral notice”), he must give notice of the entry to— (a) the proprietor of the registered estate or charge to which it relates, and (b) such other persons as rules may provide. (2) A unilateral notice must— (a) indicate that it is such a notice, and (b) identify who is the beneficiary of the notice. (3) The person shown in the register as the beneficiary of a unilateral notice, or such other person as rules may provide, may apply to the registrar for the removal of the notice from the register. 36 Cancellation of unilateral notices (1) A person may apply to the registrar for the cancellation of a unilateral notice if he is— (a) the registered proprietor of the estate or charge to which the notice relates, or (b) a person entitled to be registered as the proprietor of that estate or charge. (2) Where an application is made under subsection (1), the registrar must give the beneficiary of the notice notice of the application and of the effect of subsection (3). (3) If the beneficiary of the notice does not exercise his right to object to the application before the end of such period as rules may provide, the registrar must cancel the notice. (4) In this section— “beneficiary”, in relation to a unilateral notice, means the person shown in the register as the beneficiary of the notice, or such other person as rules may provide; “unilateral notice” means a notice entered in the register in pursuance of an application under section 34(2)(b).” (a) an agreed notice, or (b) a unilateral notice. (a) the proprietor of the registered estate or charge to which it relates, and (b) such other persons as rules may provide. (a) indicate that it is such a notice, and (b) identify who is the beneficiary of the notice. (a) the registered proprietor of the estate or charge to which the notice relates, or (b) a person entitled to be registered as the proprietor of that estate or charge.

(b) ”

[15]So the system provides for the entry of unilateral notices by a “beneficiary” – here the Silkstones. Notice is given of the entry to the proprietor of the registered estate – Mr Tatnall. The beneficiary of the notice may himself apply to the registrar for removal of his unilateral notice: section 35(3). That did not happen here. The proprietor of the registered estate may apply to the registrar for cancellation of the unilateral notice. That is what Mr Tatnall did here. Notice of the application to cancel must be given to the beneficiary of the notice, and if the beneficiary of the notice does not exercise his right to object, the registrar must cancel the notice. All this is administrative and straightforward.[16]Objections to applications are dealt with in Part 6 of the Act. Section 73 provides as follows: “73 Objections (1) Subject to subsections (2) and (3), anyone may object to an application to the registrar. (3) In the case of an application under section 36, only the person shown in the register as the beneficiary of the notice to which the application relates, or such other person as rules may provide, may object. (4) The right to object under this section is subject to rules. (5) Where an objection is made under this section, the registrar— (a) must give notice of the objection to the applicant, and (b) may not determine the application until the objection has been disposed of. (6) Subsection (5) does not apply if the objection is one which the registrar is satisfied is groundless. (7) If it is not possible to dispose by agreement of an objection to which subsection (5) applies, the registrar must refer the matter to the adjudicator. (8) Rules may make provision about references under subsection (7).” (a) must give notice of the objection to the applicant, and (b) may not determine the application until the objection has been disposed of.[17]The Registrar may therefore throw out groundless objections: but anything which passes this very low threshold must be referred to the Adjudicator. By Section 108(1) the Adjudicator has the following amongst other functions:
“(a) determining matters referred to him under section 73(7),”
[18]There is, I was told, nothing relevant in the Land Registration Rules 2003 referred to in section 73(4). The Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 set out the procedure to be followed in an adjudication, including disclosure of documents and the service of witness statements. Rule 5(3) of these rules provides that:
“Following receipt by the adjudicator of a reference, the adjudicator must— (b) serve on the parties notice in writing of— (v) which party will be the applicant for the purposes of the proceedings and which party or parties will be the respondent.” (b) serve on the parties notice in writing of— (v) which party will be the applicant for the purposes of the proceedings and which party or parties will be the respondent.”
[19]In the present case the Adjudicator determined that Mr Tatnall should be the applicant and the Silkstones the respondents. This reflected the positions of the parties before the Land Registry where Mr Tatnall was applying to cancel the unilateral notice. He might equally have reversed the descriptors, as it was the Silkstones who were asserting the right of way.[20]The Rules also contain a rule similar to CPR Part 1 concerned with the overriding objective: “3 The overriding objective(1) The overriding objective of these Rules is to enable the adjudicator to deal with matters justly.(2) Dealing with a matter justly includes, so far as is practicable— (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the matter in ways that are proportionate— (i) to the value of the land or other interests involved; (ii) to the importance of the matter; (iii) to the complexity of the issues in the matter; and (iv) to the financial position of each party; and (d) ensuring that the matter is dealt with expeditiously and fairly.(3) The adjudicator must seek to give effect to the overriding objective when he— (a) exercises any power given to him by these Rules; or (b) interprets these Rules.(4) The parties are required to help the adjudicator to further the overriding objective. (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the matter in ways that are proportionate— (i) to the value of the land or other interests involved; (ii) to the importance of the matter; (iii) to the complexity of the issues in the matter; and (iv) to the financial position of each party; and (d) ensuring that the matter is dealt with expeditiously and fairly. (a) exercises any power given to him by these Rules; or (b) interprets these Rules.[21]Rule 55 gives the Adjudicator power to impose a sanction on a party who has defaulted in complying with a direction. The Adjudicator may direct the Registrar to allow or cancel the original application, in which case the imposition of this sanction is deemed to count as the substantive decision. Apart from this sanction procedure, if the matter proceeds to a substantive decision without default, the Adjudicator may make an order including requirements that the Registrar give effect to the original application in whole or in part as if the objection had not been made or cancel the original application in whole or in part (see Rule 41).[22]To complete the picture, the Act contains provisions (section 110) to enable the Adjudicator to direct a party to commence court proceedings to determine the matter. In these circumstances, the Adjudicator will adjourn the proceedings before him once he has received notice that court proceedings have been commenced – see Rules 8 and 9. Rule 11 provides a discretionary power to adjourn when proceedings are commenced otherwise than following a direction under section 110.

The Appellants’ submissions

[23]Mr Monnington submitted: i) that the effect of the correspondence which I have recited was that, by 2nd June at the very latest, the Silkstones had made it clear to the Adjudicator that the objection to Mr Tatnall’s application was withdrawn and that the cancellation of the unilateral notice was consented to; ii) that the Adjudicator had no power under the Act or Rules to prevent the Silkstones from withdrawing in this way; iii) that if, contrary to the last submission, the Adjudicator had power to refuse permission to withdraw, the Adjudicator exercised his discretion wrongly in not permitting withdrawal; iv) that upon such a withdrawal, the Adjudicator no longer has jurisdiction to decide the matter referred on the merits; v) that in such circumstances the Adjudicator ought simply to have reported the withdrawal to the Land Registry and declined to deal with any further matter, apart from costs.

Discussion

[24]On the first of Mr Monnington’s submissions, I think it is clear that the Silkstones were, in their letter of 28th May, seeking to withdraw their objection to Mr Tatnall’s application to cancel the unilateral notice, and therefore no longer resisting an order for its cancellation. The statement that this would “leave the way clear for the Respondents to take out Court proceedings at a later date” was not seeking to impose any condition on the withdrawal. It was merely a contention as to the effect of the withdrawal. Even if that is wrong, by 2nd June at the latest it was clear that the Silkstones were purporting to withdraw their objection unequivocally and recognising that the unilateral notice would be cancelled.[25]As to the remainder of Mr Monnington’s submissions, there is an important distinction between(a) a party who states that it does not wish to take any further part in the proceedings in relation to the matter referred to the Adjudicator and(b) a party purporting to be able to withdraw the underlying objection which gives rise to the reference and consents to the cancellation of the notice. In the former case, given that the party “withdrawing” is the respondent resisting an order for cancellation, one would not expect the withdrawal of participation to affect the jurisdiction of the Adjudicator to go on and decide the matter. This is no more than an illustration of the general principle that any defending party who fails to appear or take part in any other type of legal proceeding opens himself to the possibility that, at the trial, his opponent will successfully establish the case against him in his absence. There is nothing in the Act or Rules which prevents a party from taking this stance in proceedings before the Adjudicator, and in consequence nothing which prevents the Adjudicator from coming to a substantive decision on the merits in the absence of the objecting party. If it were otherwise, there would be no means of disposing of the objection and cancelling the unilateral notice.[26]The position may be different if a party can withdraw the objection which gave rise to the reference. Unlike the unilateral notice, where section 37(3) has a specific provision providing for an application for removal of the notice by the party who applied for it, there is no express provision governing the withdrawal of objections. The Act, in section 73(7), contemplates, at least before a reference to the Adjudicator is made, that an objection may be disposed of by agreement, without the need for any application to withdraw the objection. The objection is, after all, the only obstacle which stands between the application to cancel the notice and its cancellation. The words “dispose by agreement” must, as I interpret them, also encompass the case where the objection is unilaterally withdrawn. It would be inconvenient if the effect of the section were that a reference still had to be made to the Adjudicator if the objection were unilaterally withdrawn. So, at least up to the point where the matter is referred to the Adjudicator, the objection may be disposed of by agreement, including by unilateral withdrawal. The withdrawal of the objection in this case would have meant that the register was cleared of the notice asserting the existence of the right of way. The former beneficiary of the notice would not normally be prevented from asserting the claim to that right in separate proceedings.[27]The purpose of the referral to the Adjudicator is to provide a mechanism for disposal of applications which are objected to and in which the objection cannot be disposed of by agreement in this broad sense. Referral to the Adjudicator involves a recognition that the objection is not obviously groundless, and that the parties have not achieved agreement as to the correct state of the Register. The Adjudicator is given the task of determining, by examination of evidence, those applications where there is a dispute as to the underlying rights.[28]I think that the heart of the question which I have to decide is whether one should treat the matter referred to the adjudicator as a procedure whose purpose it is to establish the existence or otherwise of the right of way or other right in dispute, or whether the matter is better viewed as a subsidiary proceeding whose sole purpose is to provide a mechanism to dispose of applications to which there is a subsisting administrative objection. If the former, then I would be inclined to hold that, although the objector should be free to withdraw participation, this would not prevent the Adjudicator from going on and deciding the matter. If the latter, then I think it is clear that the Adjudicator should not continue to deal with the substance of the matter after the administrative objection is withdrawn.[29]I think that the reference to the Adjudicator is better viewed as a proceeding whose purpose it is to determine the underlying right, quite unlike the administrative procedure in the Land Registry. That is illustrated by the fact that one way in which the Adjudicator may carry out his function is by ordering a party to commence court proceedings, which would also have the effect of determining underlying rights. Proceedings before the Adjudicator are triggered precisely because it is necessary to determine those rights in order to dispose of the objection. The procedure laid down by the Rules is plainly one directed at determining those underlying rights.[30]It follows in my judgment that there is no reason why administrative steps, such as unilateral withdrawal of an objection, which would be possible before the Registrar, should be available as of right in proceedings before the Adjudicator, which are of a different character. As the Deputy Adjudicator pointed out, once an application and its objection are transferred to the Adjudicator, the matter is no longer in the hands of the Registrar and is instead in the hands of the Adjudicator. The Adjudicator has the function, under section 108(1), of deciding the matter referred to him. While the matter is in his hands, the objector cannot apply to the Registrar to withdraw the objection, because the objection is no longer in the hands of the Registrar. The only way of disposing of the objection is by means of the proceedings before the Adjudicator.[31]Section 73(5)(b) prevents the Registrar from determining the application until objection has been disposed of. Both counsel submitted that an objection could be disposed of in more ways than those specifically contemplated by the Act and that an objection could be disposed of in various ways even after a reference to the Adjudicator. Mr Morshead pointed to the fact that an objection might be concluded by a court decision other than in proceedings directed by the Adjudicator. Section 73(5)(b) therefore was no obstacle to the Registrar or the Adjudicator accepting a withdrawal of the objection after a reference to the Adjudicator.[32]I am not persuaded by these submissions. I agree with the Deputy Adjudicator when he said that a purported notice of withdrawal of the objection given to the Registrar whilst the matter is referred to the Adjudicator will be ineffective. It would be wholly unsatisfactory if the same matter could be processed at the same time in two different fora. So it is a complete answer to an application to the Registry to withdraw an objection that the matter is pending before the Adjudicator. On the other hand, absent full agreement between the parties disposing of the whole proceeding before the Adjudicator, once proceedings before the Adjudicator are on foot, the mechanism for disposing of the objection is via the determination of the Adjudicator.[33]I therefore also agree with the Deputy Adjudicator that a purported notice of withdrawal of the objection given to the Adjudicator will be ineffective. There is no provision in the Act or Rules for the Adjudicator to receive or act on a withdrawal of the original objection. The objection is filed with the Registrar, and the Adjudicator does not take over the function of the Land Registry in this regard even though the Registrar cannot himself act on such a withdrawal until the reference is disposed of.[34]I only part company with the Deputy Adjudicator to the extent that he implies that a withdrawal of the underlying objection would be given effect to when “the Adjudicator has ruled on the terms on which the notice will be give effect to and the terms have been accepted by the party seeking to withdraw”. I think that the proper analysis is that the Adjudicator does not have the power to accept or reject a withdrawal of the original objection. That simply cannot be done when the matter is before the Adjudicator. The Adjudicator’s sole function is to determine the proceedings before him. If the parties are agreed as to the terms on which those proceedings are to be determined, then he can give effect to that agreement by giving appropriate directions to the Registrar. But if the parties are not so agreed, there is no need or basis for him to give a ruling on any terms.[35]On the other hand, as indicated earlier in this judgment, if a party wishes to take no further part in the proceedings before the Adjudicator, then he is free to do so, and there is nothing in the Act or Rules which requires him to seek the permission of the Adjudicator. Where this occurs, the Adjudicator may proceed with the reference and reach such conclusions as are justified by the evidence. Alternatively there may come a point where the non-participating party has failed to comply with directions, and the power to sanction under Rule 55 comes into play. But none of this involves the implication of a power to accept or refuse the withdrawal of an objection. Withdrawal from the proceedings is a quite different matter from withdrawing the underlying objection, which is something which cannot be achieved whilst the matter is referred to the Adjudicator.[36]Accordingly I would hold in the present case that the Adjudicator’s jurisdiction to determine the matter referred to him continued notwithstanding the purported withdrawal of the Silkstones. Mr Tatnall was seeking a substantive remedy, namely cancellation of the unilateral notice, and was entitled to demonstrate that he was entitled to it by obtaining a decision from the Adjudicator to that effect. The Silkstones had not withdrawn the underlying objection by withdrawing it from the Registrar and could not do so. They had to extricate themselves from the reference before the Adjudicator. To do that they would either have to settle with Mr Tatnall, or concede the relief he was seeking and his entitlement to it. They did not do so.[37]Mr Monnington relied on section 35(3) as background to the question of construction of the Act. He said that as the Silkstones could withdraw the unilateral notice under this provision (although they had not done so here) they should have a corresponding right to withdraw the objection. I think there are a number of answers to this. Firstly, I am not persuaded that whilst the matter of the application to cancel and the objection are before the Adjudicator, the Registrar has power to permit the withdrawal of the notice. Secondly, the Silkstones did not have a right to withdraw the unilateral notice: they had a right to apply to withdraw it. If such an application had been made, Mr Tatnall could have objected on the grounds that the cancellation of the notice was before the Adjudicator, and that it would be unjust to allow unilateral withdrawal. That matter too would have to be referred to the Adjudicator. So I do no think that section 35(3) compels a different result.[38]Mr Monnington submitted that this approach to the matter ignored the fact that the proceedings as a whole were instigated by the Silkstones’ assertion of the right of way, and that to view them as responding to a claim was merely a consequence of the rather convoluted procedure in the Land Registry and the Adjudicator’s decision to nominate Mr Tatnall as applicant under Rule 5(b)(v). He submitted that the position was analogous to a party who sought a declaration as to the existence of a right of way in ordinary court proceedings, and discontinued those proceedings. The court would not then go on to reach a conclusion on the merits.[39]I am not persuaded that the fact that it might have been possible for the Silkstones to withdraw, had the procedural arrangements been different, is a reason for allowing them to do so when they are aligned as they were. I am far from convinced that even if the Silkstones had been applicants before the Adjudicator, their withdrawal from participation in the reference would have deprived the Adjudicator of jurisdiction to decide the matter. The matter, namely the unresolved application before the Registrar, would remain referred to him for decision.[40]My conclusions are supported by the fact that, if it were the case that the Adjudicator was deprived of jurisdiction by the withdrawal of the objection, then some basis would have to be found for a power to award costs and make the parts of his direction concerned with maintenance and repair. So far as costs are concerned, Mr Monnington suggested that a residual power to award the costs of the matter would continue, notwithstanding the loss of jurisdiction, as the costs would have been incurred while the matter was properly pending before him. I do not think this is a satisfactory answer, given that some costs could continue to be incurred after the withdrawal, for example costs at a hearing on the appropriate order for costs.[41]I think there is further support in a point made by the Deputy Adjudicator that, if the withdrawal of the objection deprived the Adjudicator of jurisdiction, it would have this effect even if exercised after the hearing when the party withdrawing has already been able to form a view as to the likely result. I am not attracted by a procedure which gives one party the election to abort the proceedings in this way.[42]If I am right thus far, there is no question of an exercise of discretion in permitting the Silkstones to withdraw. I will nevertheless consider whether there is any basis for interfering with the exercise of the Adjudicator’s discretion on the basis that I am wrong. Mr Monnington’s attack on the Deputy Adjudicator’s exercise of his discretion was principally on the basis that he was wrong to take into account the fact that the Silkstones had at one point reserved the right to bring fresh proceedings. The right time, so he submitted, to take that matter into account would be when, if at all, the Silkstones sought to commence fresh proceedings. I reject that submission. It was material to the exercise of the Deputy Adjudicator’s discretion, if he did have one, that one possible consequence of allowing the reference to terminate without a determination of the substantive rights would be that the dispute would re-surface at a later time.[43]The law has never favoured those who are willing to wound but afraid to strike. The Silkstones instigated the procedure before the Land Registry, provoked the reference by their objection and pursued it right up to the eve of a hearing at which they recognised they would have inadequate evidence to establish their claimed right. There is no merit in their suggestion that they should be entitled as of right to deprive the Adjudicator of jurisdiction at the last minute so as to preserve a right to prolong the litigation by re-litigating it in a more expensive forum.[44]The final point is the assertion that the Deputy Adjudicator should not have mentioned section 62, given that it had not been relied on by the Silkstones, and that they had been refused disclosure on this basis. I do not think there is anything in this point. The decision of the Deputy Adjudicator was that the evidence did not establish the existence of the right of way. The Silkstones could have, but did not, take the opportunity to support their case based on section 62. There is no reason why the Deputy Adjudicator should not have recorded the absence of evidence on this basis, as well as on the existence of a right of way by prescription.[45]It follows that I have reached the same conclusion as the Deputy Adjudicator, albeit by a slightly different route. I therefore propose to make an order dismissing the appeal.

Cited in 1 later judgment