Home > News > Registration of a vesting order obtained using fraudulent documents not a mistake on the Register, rules High Court

Trevor Anthony Antoine (Administrator to the estate of Joseph Antoine, deceased) v (1) Barclays Bank Plc (2) The Chief Land Registrar (3) Athena Ethel Taylor (Personal Representative of George Taylor, deceased) [2018] EWHC 395 (Ch)

On Friday 2nd March 2008, Joanna Smith QC (sitting as a Deputy Judge of the High Court) gave judgment in the latest case concerning the meaning of “mistake” for the purpose of rectification of the Register under Schedule 4 to the Land Registration Act 2002.

The facts were unusual and unfortunate. Mr Joseph Antoine was at one time the owner 14 Mirabel Road, London, SW6.   He died on 21st February 1996.   The Claimant, Mr Trevor Antoine, was granted letters of administration on 14th August 1996, but did not seek to register himself as proprietor of the Property at H M Land Registry.  The Property was left vacant for several years.  In 2006, Mr George Taylor commenced a claim against Mr Antoine (senior) in the High Court, Chancery Division, in relation to two purported loan agreements, which he sought to enforce by requesting a vesting order by which the Property would be transferred to him.   In the absence of Mr Antoine (senior), on 12th July 2007 the Court made a vesting order that entitled Mr Taylor to be entered as the registered proprietor of the Property.    On 26th February 2008, Mr Taylor then charged the Property to Barclays Bank Plc and the charge was registered with deemed effect from 29th February 2008.

Mr Antoine (junior) learned about the proceedings later in 2008, and made an application to set aside the vesting order on the basis that it was irregular and had been obtained in reliance on documents that were forgeries. The application succeeded, but on 10th July 2008 the vesting order was set aside without prejudice to the rights of the Bank.  The 2006 claim was not determined at the time and Mr Taylor died on 13th June 2016.  Mr Antoine commenced a fresh claim in 2016, seeking to argue that the Bank’s charge was a mistake on the Register that ought to be corrected by rectification.    The two claims were tried together.

Both the Bank and the Chief Land Registrar accepted that the contested documents were forgeries, but maintained that the registration of the vesting order was not a mistake as a matter of law, and that there was no proper basis for rectifying the Register by cancelling the Bank’s charge.

The Court found in favour of the Bank and the Registrar, on a combined application of two distinct lines of authority.   The contested documents were forged, but had no dispositive effect in themselves: only the vesting order of the Court took effect as a registrable disposition.  However irregular the vesting order had been, it was an order emanating from the Court that was valid and effective unless or until it had been set aside (see Hadkinson v Hadkinson [1952] P 285 (CA)), to which the Registrar was bound to give effect under the 2002 Act.   The situation was therefore analogous to a voidable transaction, as opposed to a void transaction.   It is now well-established that the question of mistake is judged at the time of registration: as a result, the registration of a void transaction may be a mistake on the Register for the purpose of Schedule 4 of the 2002 Act, but the registration of a voidable transaction cannot be a mistake if it has not been declared void and set aside before it is registered (see NRAM Ltd v Evans & Evans [2018] 1 WLR 639 (CA)).   Independently of the forged documents, the vesting order entitled Mr Taylor to be registered as the proprietor of the Property at the time.  For so long as he was the registered proprietor on the basis of the vesting order, he was entitled to exercise ‘owner’s powers’ under s. 24 of the 2002 Act, which included charging the Property to the Bank.   If Mr Taylor’s registration as the owner of the Property was not a mistake, then it followed that the registration of the Bank’s charge could not be a mistake either; and neither of those events could retroactively become mistakes on the Register once the vesting order had been set aside, and the Register had been updated to reflect the later order.

Mr Antoine was in an unfortunate position personally, due to the Court having unwittingly given effect to the forged documents.  But, as a matter of principle, this judgment was the inexorable effect of binding Court of Appeal authority in relation to both the meaning of “mistake” in the land registration context, and the general law as to the effect of court orders.  As the Learned Judge acknowledged at paragraph 116 of her judgment, there was a wider point of public policy and principle at stake.   If the registration of title pursuant to a court order, which was valid at the time of registration, could be impugned as mistake, then the policy of the 2002 Act as to the conclusiveness of the Register might well be undermined, and there might be broader implications for the inviolable status of court orders.  

Katrina Yates acted for The Chief Land Registrar, instructed by the Government Legal Department.

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